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^ 


MANUAL  OF  PRACTICE 

IN  THE  COURTS  OF    THE 

UNITED   STATES. 

Embracing  the  Provisions  of  the  Constitution,  the  Revised 

Statutes  and  Amendments  thereto  relating  to  Federal 

Courts,  together  with  the  Rules  promulgated  by 

the  Supreme  Court  of  the  United  States. 

WITH  NOTES  OF  DECISIONS. 


ROBERT     DESTY, 

Attorney  at  Law. 

NINTH    EDITION. 

Revised  and  brought  to  date,  with  the  addition  of  the  Rules  of 

the  Circuit  Courts  of  Appeals,  the  Bankruptcy  Act, 

and  General  Orders  in  Bankruptcy. 

BY 

M. A. FOLSOM, 

ATTORNEY  AT  LAW. 

TOGETHER  WITH  A  VOLUME  OF  FORMS, 

Adapted  and  Referring  to  this  Manual. 

BY 

C.    H.    TEBBS. 

Attorney  at  Law,  and  Solicitor  of  the  Supreme  Court 
of  Judicature,  England. 

The  Whole  in  Four  Volumes. 
VOL.  11. 

SAN    FRANCISCO: 

BANCROFT-WHITNEY    CO. 

LAW  PUBLISHERS  AND  LAW  BOOKSELLERS. 
1S99. 


CoPTRiaHT,  1875, 
Bt  SUMNER  WHITNEY  &  CO. 

COFTBIGHT,  1883, 
BY  SUMNER  WHITNEY  &  CO. 

(;OPYRTGHT,  1888, 

Bt  BANCROFT-WHITNEY  CO, 

Copyright,  1893, 
By  BANCROFT-WHITNEY  CO. 

.         Copyright,  1899, 
Bt  BANCEOFT-WHITNEY  co. 


703  SUPBEME   COUBT— OBGANIZATION.  §§  189-191 


CHAPTER  XL 

BITPKEME  COURT — OBGANIZATIOW. 

§  189.  Number  of  justices. 

§  190.  Precedence  of  the  associate  justices. 

§  191.  Vacancy  in  the  office  of  chief  justice. 

§  192.  Salaries  of  justices. 

§  193.  Clerli;,  marshal,  and  reporter. 

§  194.  Deputies  of  the  clerk. 

§  195.  Records  of  the  old  court  of  appeals. 

§  196.  Marshal  of  the  supreme  coui't. 

§  197.  Duties  of  the  reporter. 

§  198.  Reporter's  salary  and  price  of  reports. 

§  189.  Number  of  justices. — The  supreme 
court  of  the  United  States  shall  consist  of  a  chief 
justice  of  the  United  States  and  eight  associate  jus- 
tices, any  six  of  whom  shall  constitute  a  quorum. 
(Rev.  Stats,  sec.  673.) 

§  190.     Precedence  of  the  associate  justices. — 

The  associate  justices  shall  have  precedence  accord- 
ing to  the  dates  of  their  commissions,  or,  when  the 
commissions  of  two  or  more  of  them  bear  the  same 
date,  according  to  their  ages.  (Rev.  Stats,  sec. 
674.) 

§  191.    Vacancy  in  the  office  of  chief  justice. — 

In  case  of  a  vacancy  in  the  office  of  the  chief  jus- 
tice, or  of  his  inability  to"  perform  the  duties  and 
powers  of  his  office,  they  shall  devolve  upon  the 


i  *  ^■»*— vJj— » .<-»  ■ 


§§  192-194  suPBExrE  court— organization.  704 

associate  justice  who  is  first  in  precedence,  until 
such  disability  is  removed,  or  another  chief  justice 
is  appointed  and  duly  qualified.  This  provision 
shall  apply  to  every  associate  justice  who  succeeds 
to  the  office  of  chief  justice.  (Eev.  Stats,  sec. 
675.) 

§  192.  Salaries  of  judges. — The  chief  justice  of 
the  supreme  court  of  the  United  States  shall  re- 
ceive the  sum  of  ten  thousand  five  hundred  dollars 
a  year,  and  the  justices  thereof  shall  receive  the 
sum  of  ten  thousand  dollars  a  year  each,  to  be  paid 
monthly.     (Eev.  Stats,  sec.  676.) 

§  193.  Clerk,  marshal,  and  reporter. — The  su- 
preme court  shall  have  power  to  appoint  a  clerk 
and  a  marshal  for  said  court,  and  a  reporter  of  its 
decisions.     (Eev.  Stats,  sec.  677.) 

§  194.  Deputies  of  the  clerk. — One  or  more 
deputies  of  the  clerk  of  the  supreme  court  may  be 
appointed  by  the  court  on  the  application  of  the 
clerk,  and  may  be  removed  at  the  pleasure  of  the 
court.  In  case  of  the  death  of  the  clerk,  his  dep- 
uty or  deputies  shall,  unless  removed,  continue  in 
office  and  perform  the  duties  of  the  clerk  in  his 
name,  until  a  clerk  is  appointed  and  qualified;  and 
for  the  defaults  or  misfeasances  in  ofiice  of  any 
such  deput}',  whether  in  the  lifetime  of  the  clerk 
or  after  his  death,  the  clerk,  and  his  estate,  and  the 
sureties  in  his  official  bond  shall  be  liable;  and  his 
executor  or  administrator  shall  have  such  remedy 
for  any  such  default  or  misfeasance  committed  af- 


705  SUPREME    COURT— OBGANIZATION.  §§  195-197 

ter  his  death  as  the  clerk  would  be  entitled  to  if  the 
same  had  occurred  in  his  lifetime.  (Eev.  Stats. 
sec.  678.) 

§  195.     Records  of  the  old  court  of   appeals. — 

The  records  and  proceedings  of  the  court  of  ap- 
peals, appointed  previous  to  the  adoption  of  the 
present  Constitution,  shall  be  kept  in  the  office  of 
the  clerk  of  the  supreme  court,  who  shall  give 
copies  thereof  to  any  person  requiring  and  paying 
for  them  in  the  manner  provided  by  law  for  giving 
copies  of  the  records  and  proceedings  of  the  su- 
preme court;  and  such  copies  shall  have  like  faith 
and  credit  with  all  other  proceedings  of  said  court. 
(Rev.  Stats,  sec.  679.) 

§  196.     Marshal   of   the   supreme   court. — The 

marvshal  is  entitled  to  receive  a  salary  at  the  rate  of 
three  thousand  five  hundred  dollars  a  year.  He 
shall  attend  the  court  at  its  sessions;  shall  serve 
and  execute  all  process  and  orders  issuing  from  it, 
or  made  by  the  chief  justice  or  an  associate  justice 
in  pursuance  of  law;  and  shall  take  charge  of  all 
property  of  the  United  States  used  by  the  court  or 
its  members.  With  the  approval  of  the  chief  jus- 
tice, he  may  appoint  assistants  and  messengers  to 
attend  the  court,  with  the  compensation  allowed 
to  officers  of  the  House  of  Representatives  of  sim- 
ilar grade.     (Rev.  Stats,  sec.  680.) 

§  197.  Duties  of  the  reporter. — The  reporter 
shall  cause  the  decisions  of  the  supreme  court  made 
during  his  office  to  be  printed  and  published  with- 


I  198  SUPREME   COUBT— ORGANIZATION.  700 

in  eight  months  after  they  are  made;  and  witliin 
the  same  time  shall  deliver  three  hundred  copies  of 
the  volumes  of  said  reports  to  the  secretary  of  the 
interior.  And  he  shall,  in  any  year,  when  he  is  so 
directed  by  the  court,  cause  to  be  printed  and  pub- 
lished a  second  volume  of  said  decisions,  of  which 
he  shall  deliver,  in  like  manner  and  time,  three 
hundred  co])ies.     (Rev.  Stats,  sec.  681.) 

§  198.  Reporter's  salary  and  price  of  reports. — 
The  reporter  shall  be  entitled  to  receive  from  the 
treasury  an  annual  salary  of  four  thousand  five 
hundred  dollars  when  his  report  of  said  decisions 
constitutes  one  volume,  and  an  additional  sum  of 
twelve  hundred  dollars  when,  by  direction  of  the 
court,  he  causes  to  be  printed  and  published,  in 
any  year,  a  second  volume.  Said  reporter  shall  be 
annually  entitled  to  clerk-hire  in  the  sum  of  one 
thousand  two  hundred  dollars,  and  to  office  rent, 
stationery,  and  contingent  expenses  in  the  sum  of 
Bix  hundred  dollars.  (22  U.  S.  Stats.  219.)  The 
volumes  of  said  reports  shall  be  furnished  by  the 
reporter  to  the  public  at  a  sum  not  exceeding  two 
dollars  per  volume,  and  the  number  of  volumes 
now  recjuired  to  be  delivered  to  the  secretary  of  the 
interior  shall  be  furnished  by  the  reporter  without 
any  charge  therefor.  (Act  of  Feb.  12,  1889,  ch. 
135,  sec.  2;  1  Siipp.  374.) 


707  SUPKEMJE  CXJUBT — aEBtJlONS.  §§  199-300 


CHAPTER  XII. 

BTJPKEME    COUET— SESSIONS. 

§  199.    Terms. 

§  200.     Adjournment  for  want  of  a  quorum. 
§  201.     Preparatory    orders    made    by    less    than    a 
quorum. 

§  199.  Terms. — The  supreme  court  shall  hold 
at  the  seat  of  government  one  term  annually,  com- 
mencing on  the  second  Monday  in  October,  and 
such  adjourned  and  special  terms  as  it  may  find 
necessary  for  the  dispatch  of  business;  and  suits, 
proceedings,  recognizances,  and  processes  pending 
in  or  returnable  to  said  court  shall  be  tried,  heard, 
and  proceeded  with  as  if  the  time  of  holding  said 
sessions  had  not  been  hereby  altered.  (Eev.  Stats. 
sec.  684.) 

§  200.     Adjournments  for  want  of  quorum. — If 

at  any  session  of  the  supreme  court  a  quorum  does 
not  attend  on  the  day  appointed  for  holding  it,  the 
justices  who  do  attend  may  adjourn  the  court  from 
day  to  day  for  twenty  days  after  said  appointed 
time,  unless  there  be  sooner  a  quorum.  If  the 
quorum  does  not  attend  within  said  twenty  days, 
the  business  of  the  court  shall  be  continued  over 
till  the  next  appointed  session;  and  if  during  a 
term  after  a  quorum  has  assembled  less  than  that 
number  attend  on  any  day,  the  justices  attending 


5  201  SLPREME  COURT — SESSIONS.  708 

may  adjourn  the  court  from  day  to  day  until  there 
is  a  quorum,  or  may  adjourn  without  day.  (Rev. 
Stats,  sec.  685.) 

§  201.  Preparatory  orders  made  by  less  than  a 
quorum. — The  justices  attending  at  any  term  when 
less  than  a  quorum  is  present  may,  within  the 
twenty  days  mentioned  in  the  preceding  section, 
make  all  necessary  orders  touching  any  suit,  pro- 
ceeding, or  process  depending  in  or  returned  to  the 
court,  preparatory  to  the  hearing,  trial,  or  decision 
thereot.     (Kev.  Stats,  sec.  686.) 


709  SUPBEME   COUSX— JUBISDICTIOW, 


CHAPTER  XIII. 

SUPREME  COUKT— JURISDICTION. 

§  202.     Original  jurisdiction. 

§  203.    Writs  of  proliibition  and  mandamus. 

§  204.     Issues  of  fact. 

§  205.    Appellate  jurisdiction. 

§  206.    Appeal  from  district  and  circuit  courts,  how 
regulated. 

§  207.    Appeals  direct  to  supreme  court  from  district 
and  circuit  courts. 

§  207a.  Appeals  to  supreme  court  from  circuit  court 
of  appeals. 

§  208.    From  Indian  Territory. 

§  209.    Appeals  in  prize  causes. 

§  210.     Appeals  in  prize  causes  remaining  in  circuit 
courts. 

§  210a.  Appellate  jurisdiction  in  bankruptcy  cases. 

§  210b.  Writs   of   error   and   appeals   in   banliruptcy 
matters. 

§  211.    Transcripts  on  appeal. 

§  212.     Cases  where  questions  of  jurisdiction  only  re- 
viewed, without  reference  to  amount. 

§  213.    Judgment  or  decree  on  review. 

§  213  a.  Remanding  causes. 

§  214.    Writs  of  error  and  appeals  from  territorial 
courts. 

§  215.     Utah. 

§  216.     Territorial  courts— procedure  on  appeal. 

§  217.     When  a  territory  becomes  a  State  after  judg- 
ment or  decree  in  territorial  court. 

§  218.    Judgments  and  decrees  of  district  courts  in 
cases  transferred  from  territorial  court. 
Fed.  Proc— 60. 


^  202  SUPREME    COURT— JURISDHTIOX.  710 

§  219.    Judji'ments  and  decrees  of  court  of  appeals  of 

District  of  Columbia. 
§  220.    Certiorari  to  court  of  appeals  of  District  of 

Columbia. 
§  221.     Appeals  from  the  court  of  claims. 
§  222.     Time  aud  manner  of  appeal  from  the  court  of 

claims. 
§  223.     Judgment  and   decrees   of    State    courts   on 

writs  of  error. 
§  224.     Precedence  of  writs  of  error  to  State  courts 

in  criminal  cases. 

§  202.  Original  jurisdiction. — The  supreme 
court  shall  have  exclusive  jurisdiction  of  all  con- 
troversies of  a  ci\il  nature  where  a  State  is  a  party, 
except  between  a  State  and  its  citizens,  or  between 
a  State  and  citizens  of  other  States,  or  aliens,  in 
which  latter  cases  it  shall  have  original,  but  not  ex- 
clusive jurisdiction.  And  it  shall  have  exclusively 
all  such  jurisdiction  of  suits  or  proceedings  against 
enil)a.ssadors,  or  other  public  ministers,  or  their 
domestics,  or  domestic  servants,  as  a  court  of  law 
can  have  consistently  with  the  law  of  nations,  and 
original,  but  not  exclusive,  jurisdiction  of  all  suits 
brought  by  embassadors,  or  other  public  ministers, 
or  in  which  a  consul  or  vice-consul  is  a  party. 
[See  sees.  4063-40G6.]  (U.  S.  Const,  art.  iii,  sec. 
2,  cl.  2;  Eev.  Stats,  sec.  687.) 

Note.— See  Fowler  v.  Lindsey.  3  Dall.  411;  Marbury 
v.  Madison,  1  Cranch,  137;  Cohens  v,  Virginia,  6 
"Wlieat.  204;  Osborn  v.  Bank,  9  Wheat.  738;  Florida 
V.  Georgia.  17  How.  478;  Kentucky  v.  Dennison,  24 
IIow.  ()o;  Mississippi  v.  .Johnson,  4  Wall.  475;  Pooley 
v.  Luco,  70  Fed.  Rep.  140. 


711  SUPREME   COURT— JURISDICTION.  §  202 

Jurisdiction  of  supreme  court  in  general. — The  su- 
preme court  has  no  jurisdiction  except  that  given 
by  the  Constitution  or  laws  of  the  United  States.  (Ex 
parte  Bollman,  4  Cranch,  75.)  An  action  without  the 
limits  prescribed  is  coram  non  judice,  and  its  action 
a  nullity.  (Khode  Island  v.  Massachusetts,  15  Peters, 
233;  S.  C,  12  Peters,  657.)  A  proceeding  to  obtain 
a  mandamus  is  an  action  at  law  between  the  parties, 
and  is  not  regarded  as  a  prerogative  writ.  (Com.  v. 
Dennison,  24  How.  60;  Com.  v.  Boutwell,  13  Wall. 
526.)  The  supreme  court  has  no  original  jurisdiction 
where  a  private  person,  an  alien,  seelis  to  obtain 
redress  for  a  wrong  done  him  by  another  private  per- 
son, who  is  a  citizen.  (Ex  parte  Barry,  2  How.  65.) 
So  an  indictment  against  a  private  person  for  an  in- 
sult upon  an  embassador  or  public  minister  is  not  a 
case  aftecting  such  embassador  or  minister.  (U.  S. 
V.  Ortega,  11  Wheat.  467.)  In  the  absence  of  any  leg- 
islation of  Congress  as  to  the  process  and  mode  of 
procedure  where  the  supreme  court  has  original  juris- 
diction, the  court  itself  may  prescribe  the  mode  and 
form  of  procedure.  (Florida  v.  Georgia,  17  How.  478; 
Chisholm  v.  Georgia,  2  Dall.  419;  New  Jersey  v.  New 
York,  5  Peters,  284;  Com.  v.  Dennison,  24  How.  66.) 
In  cases  tried  by  the  supreme  court,  if  for  any  reason 
justice  requires  it,  the  supreme  court  may  simply 
reverse  and  direct  a  new  trial,  although  there  are  no 
findings  of  fact  or  agreed  statements  (City  of  St. 
Eouis  V.  Western  Union  Tel.  Co.,  148  U.  S.  92). 

This  section  defines  the  original  jurisdiction  of  this 
court,  and  designates  the  subjects  for  its  exercise 
where  a  State  is  complainant.  (Wisconsin  v.  Pelican 
Ins.  Co.,  127  U.  S.  265.) 

Where  State  is  party.— The  original  jurisdiction 
of  the  supreme  court  refers  to  cases  in  which  an 
original  suit  might  be  instituted  in  the  Federal  courts, 
and  not  to  cases  between  a  State  and  its  citizens,  or 


§  202  supreme:  court — jurisdiction.  712 

where  a  State  is  enforcing  its  penal  laws.  (Cohens 
V.  Virginia,  6  Wheat.  2CA.)  It  must  be  a  case  in  which 
the  State  is  either  nominally  or  substantially  a  party 
(Fowler  v.  Lindsey,  3  Dall.  411);  it  must  be  a  party 
on  the  record.  (Bank  v.  Planters'  Bank,  9  Wheat. 
904.)  It  has  no  original  jurisdiction  over  suits 
brought  by  any  other  political  division  than  a  State  of 
the  Union  (Texas  v.  White,  7  Wall.  700);  nor  has  it 
jurisdiction  over  questions  of  a  political  character. 
(State  V.  Stanton,  6  Wall.  50;  Cherokee  Nation  v. 
State,  5  Peters,  1.)  So,  an  Indian  tribe  is  not  a  for- 
eign state,  and  cannot  institute  a  suit  in  the  supreme 
court.  (Cherokee  Nation  v.  State,  5  Peters,  1.)  The 
supreme  court  is  the  arlnter  of  controversies  between 
States  (Chancely  v.  Bailey,  37  Ga.  532);  as  in  ques- 
tions of  boundaries  (Florida  v.  Georgia,  17  How.  478; 
Missouri  V.  Iowa,  7  How.  6(30;  Alabama  v.  Georgia, 
23  How.  505;  Virginia  v.  West  Virginia,  11  Wall.  39; 
Rhode  Island  v.  Massachusetts,  12  Peters,  657;  15 
Peters,  2.33;  State  of  Virginia  v.  State  of  Termessee, 
148  U.  S.  503;  United  States  v.  State  of  Texas,  143 
U.  S.  6211,  and  the  rules  of  practice  and  proceedings 
in  such  cases  will  be  molded  to  bring  it  to  final  hear- 
ing on  its  real  merits.  (Rhode  Island  v.  Massachu- 
setts, 14  Peters,  210.)  A  private  person  cannot  com- 
mence a  suit  against  a  State  to  recover  the  proceeds 
of  property  in  its  possession  (Ex  parte  Madrazzo,  7 
Peters,  627) ;  and  the  fact  that  land  has  been  granted 
by  and  is  claimed  under  a  State  does  not  make  the 
State  a  party  to  the  controversy  between  private 
persons  concerning  the  land.  (Fowler  v.  Lindsey,  3 
Dall.  411.)  The  supreme  court  cannot  take  jurisdic- 
tion of  a  suit  Iwtwoen  a  State  and  citizens  of  another 
State  and  its  own  citizens  (State  of  California  v. 
Southern  Pac.  Co.,  157  U.  S.  229);  nor  can  a  State 
prosecute  a  suit  in  the  supremo  court  on  the  ground 
of  any  remote  or  contingent  interest  in  itself  (State 
V.  Wheeler  Bridge  Co.,  13  How.  518);  nor  tile  a  bill 


713  SUI'KEME   COURT— JUKISDICTION.  §  203 

to  enjoin  the  President  in  the  performance  of  his 
official  duties.  (State  v.  Johnson,  4  Wall.  475.)  Where 
a  State  brings  a  suit,  the  bill  is  filed  by  the  governor 
on  behalf  of  the  State.  (Georgia  v.  Brailsford,  2 
Dall.  402;  Com.  v.  Dennison,  24  How.  66.)  It  may- 
file  a  bill  on  a  bond  on  which  the  obligee  has  ob- 
tained judgment  in  the  circuit  court.  (Georgia  v. 
Brailsford,  2  Dall.  402.)  When  a  State  is  defendant, 
summons  served  on  the  governor  and  attorney-gen- 
eral is  sufficient  (Chisholm  v.  Georgia,  2  Dall.  419; 
Grayson  v.  Virginia,  3  Dall.  320);  and  it  is  entitled 
to  a  longer  time  to  answer  than  an  individual.  (Rhode 
Ishand  v.  Massachusetts,  13  Peters,  23.)  If  it  fails 
to  appear  on  the  return  day,  the  adverse  party  may 
proceed  (Ex  parte  Huger  v.  South  Carolina,  3  Dall. 
339;  New  Jersey  v.  New  York,  5  Peters,  284);  and  so 
if  it  withdraws  its  appearance.  (Rhode  Island  v. 
Massachusetts,  15  Peters,  233;  S.  C,  12  Peters,  657). 
Where  there  are  indispensable  parties  that  are  not 
made  parties  to  a  suit  in  equity  in  the  supreme  court, 
and  the  making  them  parties  would  oust  its  juris- 
diction, the  suit  will  be  dismissed  (State  of  Califor- 
nia V.  Southern  Pac.  Ry.  Co.,  157  U.  S.  229). 

§  203.     Writs  of  prohibition  and  mandamus. — 

The  supreme  court  shall  have  power  to  issue  writs 
of  prohibition  to  the  district  courts  when  proceed- 
ing as  courts  of  admiralty  and  maritime  jurisdic- 
tion; and  writs  of  mandamus  in  cases  warranted  by 
the  principles  and  usages  of  law,  to  any  courts  ap- 
pointed under  the  authority  of  the  United  States, 
or  to  persons  holding  office  under  the  authority  of 
the  United  States,  where  a  State  or  an  embassador, 
or  other  public  minister,  or  a  consul  or  vice-consul, 
is  a  party.     (Kev.  Stats,  sec.  688.) 

Prohibition. — A  writ  of  prohibition  will  be  issued 
only  in  case  of  a  want  of  jurisdiction  either  of  the 


§203  SUPREME    COURT— JURISDICTION.  714 

parties  or  of  the  subject  matter  of  the  proceeding 
(Morrison  v.  District  Court,  147  U.  S.  14;  re  Eliza- 
beth Encrles.  140  U.  S.  357).  Tlie  writ  of  prohibition 
provided  for  in  the  above  section  is  the  common-law 
writ;  its  office  is  to  prevent  an  unlawful  assumption 
of  jurisdiction,  and  not  to  correct  mere  errors  and 
irregularities  (Ex  parte  Cooper,  143  U.  S.  472).  Be- 
fore judgment  the  court  above  can  examine  on  pro- 
hibition not  simply  the  process  and  pleadings  in  the 
record,  but  the  facts  in  evidence;  but  after  judgment 
the  record  proper  only  should  be  looked  into,  and 
not  the  evidence,  except  in  extraordinary  cases  (Ex 
parte  Cooper,  143  U.  S.  472).  When  a  writ  of  prohibi- 
tion is  applied  for,  the  question  presented  is  not 
whether  liljelant  can  recover  on  the  suit  he  has  be- 
gun, but  whether  he  can  go  into  a  court  of  admiralty 
to  have  his  rights  determined.  (Ex  parte  Gordon.  3 
Morr.  Trans.  433.)  Where  the  question  of  jurisdiction 
was  one  proper  to  be  decided  by  the  admiralty  court 
subject  to  the  remedy  by  appeal,  the  writ  will  be 
denied  (Ex  parte  Gbrdon,  3  Morr.  Trans.  433);  as  in 
the  case  of  a  suit  for  pilotage  claimed  to  be  due  un- 
der a  statutory  regulation  (Ex  parte  Hager,  3  Morr. 
Trans.  438);  or  a  suit  for  damages  for  death  in  a  col- 
lision. (Ex  parte  Gordon,  3  Morr.  Trans.  433.  See 
ex  parte  (iordon,  1  Blacli,  503.)  A  writ  of  prohibition 
will  not  be  issued  after  the  libel  has  been  dismissed. 
(U.  S.  V.  lloflman,  4  Wall.  158.)  If  the  district  court 
entertains  a  libel  in  personam  to  recover  damages  for 
a  seizure  as  prlzewhen  the  prize  has  been  talien  intoa 
foreign  port, the  writ  will  issue.  (U.S. v. Peters,  :{  Dall. 
121.)  Whether  the  district  court  has  transcended  its 
jurisdiction  depends  on  the  facts  stated  in  the  record. 
(Ex  parte  Easton,  95  U.  S.  68.)  It  cannot  be  issued 
to  regulate  proceedings  of  the  district  court  as  a 
court  of  bankruptcy.  (In  re  Christy,  3  How.  292.)  It 
can   issue  the  writ  only   under  special  authority  of 


715  SUPREME   COURT— JURISDICTION.  §  203 

law.  (Ex  parte  Gordon,  1  Black,  503;  In  re  Christy, 
3  How.  292.)  It  cannot  be  issued  to  restrain  a  pro- 
ceeding on  bill  of  review,  as  on  condemnation  of  land 
under  confiscation  laws  (Ex  parte  Graham,  10  Wall. 
541);  nor  can  the  writ  issue  to  restrain  the  execu- 
tion of  a  sentence  for  crime  of  one  convicted  in  the 
circuit  court  (Ex  parte  Gordon,  1  Black.  .503);  nor  re- 
strain a  proceeding  by  bill  in  equity  to  determine  the 
right  to  an  elective  office.  (Ex  parte  Warmouth,  17 
Wall.  64.)  This  court  may  proceed  by  way  of  prohi- 
bition in  respect  to  the  district  court  for  the  district 
of  Alaska.  (Re  Cooper.  138  U.  S.  404.  See  Farns- 
worth  V.  Montana,  129  U.  S.  104.)  The  writ  may  be 
issued  to  the  district  court  in  a  case  in  admiralty 
and  marilime  cognizance,  in  which  it  has  no  jurisdic- 
tion. Ex  parte  Easton,  95  U.  S.  68;  United  States  v. 
Peters,  3  Dall.  121.)  Where  the  case  has  gone  to 
sentence  and  the  want  of  jurisdiction  does  not  ap- 
pear upon  the  face  of  the  proceedings,  the  granting 
of  the  writ  is  not  obligatory  upon  the  court,  and  the 
party  applying  may  be  precluded  by  acquiescence 
from  obtaining  it  (Ex  parte  Cooper,  143  U.  S.  472).  Is- 
sues of  fact  on  which  the  question  of  jurisdiction  de« 
pends,  raised  by  a  petition  of  intervention  and  an 
answer  thereto,  are  not  sufficient  grounds  for  a  writ 
of  prohibition  against  enforcing  or  proceeding  further 
in  orders  or  decrees  previously  made  in  the  suit.  (Re 
Gustave  Alix,  166  U.  S.  136.) 

Mandamus,  office  of  writ. — The  office  of  a  writ  of 
mandamus  is  to  compel  the  performance  of  a  plain 
and  positive  duty  (Ex  parte  Cutting,  94  U.  S.  14).  and 
is  the  only  adequate  mode  of  relief  where  an  inferior 
court  refuses  to  act  (Life  &  F.  Ins.  Co.  v.  Wilson,  8 
Peters,  291),  or  where  the  exercise  of  the  discretion 
of  the  court  is  irregular,  against  law,  of  flagrant 
injustice,  or  without  jurisdiction.  (Ex  parte  Bradley, 
7  Wall.  364.)     The  writ  may  be  issued  to  supervise 


g  203  SUPREME    COURT — JURISDICTION.  716 

proceeding  iu  inferior  tribunals  where  there  is  a  legal 
right  without  an  existing  remedy  (Ex  parte  Bradley, 
7  Wall.  o7Gj;  but  it  is  never  granted  in  anticipation 
of  an  omission  of  duty,  but  only  after  actual  default. 
(Ex  parte  Cutting,  94  U.  S.  14.)  It  may  issue  to  com- 
pel a  court  to  proceed  with  the  case  (Insurance  Co. 
V.  Comstoclj,  IG  Wall.  25S;  Railroad  Co.  v.  Wiswall, 
23  Wall.  507);  or  to  take  jurisdiction  of  a  case  dis- 
missed for  want  of  jurisdiction  (Re  Ilohorst,  150  U.  S. 
653);  or  to  remand  a  case  (Ex  parte  Virginia,  100  U. 
S.  339);  or  to  reinstate  a  case  (Ex  parte  Bradstreet, 
7  Peters,  034);  or  to  entertain  a  motion  in  a  case 
(Ex  parte  Russell,  13  Wall.  G64);  or  to  proceed  to 
judgment;  but  a  plain  case  must  be  made  out.  (Life 
&  F.  Ins.  Co.  V.  Adams,  9  Peters,  571.)  If  the  circuit 
court  possess  an  order  staying  a  suit,  mandainus  is 
the  remedy.  (Livingston  v.  Dorgenois,  7  Cranch,  577.) 
A  writ  of  mandamus  may  be  issued  to  compel  an  in- 
ferior tribunal  to  decide  a  case,  but  it  cannot  direct 
the  manner  in  which  to  decide  or  indicate  the  char- 
acter of  the  judgment.  (Life  &  F.  Ins.  Co.  v.  Adams, 
9  Peters.  571;  United  States  v.  Addison,  22  How. 
174;  see  Ex  parte  Burtis,  103  U.  S.  238;  Re  Parsons, 
150  TJ.  S.  150;  Morrison  v.  District  Court,  147  U.  S. 
14.)  The  court  will  not,  by  mandamus,  compel  an 
inferior  court  to  reverse  a  decision.  (Ex  parte  Perry, 
102  U.  !S.  183.)  If  a  court  renders  a  judgment  of  dis- 
missal for  want  of  jurisdiction,  but  refuses  to  enter 
it,  mandamus  lies  to  compel  the  entry  (Ex  parte  Brad- 
street,  (■>  Peters.  774);  and  if  the  judge  dies  before 
signing  the  judgment,  his  successor  may  be  compelled 
by  mandamus  to  do  so.  (Life  <Si  F.  Ins.  Co.  v.  Wil- 
son, 8  Peters,  291;  Life  &  F.  Ins.  Co.  v.  Adams,  9 
Peters,  571.)  It  may  be  issued  to  compel  a  judge  to 
sign  a  bill  of  exceptions  (Ex  parte  Crane,  5  Peters, 
190),  but  not  if  he  says  it  is  incorrect  (Ex  porte  Brad- 
street,  4  Peters.  102);  nor  if  it  has  not  been  i)roperly 
prepared;  nor  will  It  issue  to  compel  a  judge  to  re- 


717  SUPREME   COURT— JURISDICTION.  §  203 

settle  a  bill  of  exceptions  on  affidavits  that  as  settled 
it  is  incorrect  (Re  Louis  F.  Streep,  156  U.  S.  207).  It 
may  be  issued  to  compel  a  judge  to  carry  the  judg- 
ment into  effect.  (Stafford  v.  Union  Bank,  16  How. 
135;  S^tafford  v.  New  Orleans  C.  &  B.  Co.,  17  How. 
283.)  If  an  inferior  court  disobeys  or  mistakes  the 
mandate  of  the  supreme  court,  the  errors  or  omissions 
may  be  brought  up  by  motion  for  a  mandamus.  (U. 
S.  V.  Fossa tt,  21  How.  445;  White,  v.  U.  S.,  1  Black, 
501;  Ex  parte  Dubuque  &  Pac.  R.  R.  Co.,  1  Wall.  69; 
Chicago  B.  &  Q.  R.  Co.  v.  City  of  Chicago.  166  U.  S. 
258;  Gaines  v.  Rugg,  148  U.  S.  228;  Re  City  Nadonal 
Bank  of  Fort  Worth,  153  U.  S.  246;  City  National 
Bank  v.  Hunter,  152  U.  S.  512;  but  see  Re  Postal 
Telegraph  Cable  Co.,  53  U.  S.  App.  635;  85  Fed.  Rep. 
853.)  The  judgment  in  a  mandamus  proceeding  is 
subject  to  review.  (Hartman  v.  Greenhow,  102  U. 
S.  672.)  The  supreme  court  may  issue  a  mandamus 
to  the  court  of  claims.  (Ex  parte  Roberts,  15  Wall. 
384;  Ex  parte  United  States,  16  Wall.  699.)  A  writ 
of  mandamus  may  properly  be  issued  by  the  supreme 
court  of  the  United  States  to  compel  the  judge  of  an 
inferior  court  to  settle  and  sign  a  bill  of  exceptions. 
(Re  Chateaugay  Ore  &  Iron  Co.'s  Petition,  128  U.  S. 
544.)  The  Supreme  Court  of  the  United  States  will 
not  interfere  by  mandamus  with  the  executive  offi- 
cers of  the  government  in  the  exercise  of  their  or- 
dinary official  duties,  even  where  those  duties  i-.?quire 
an  interpretation  of  the  law.  (United  States  v.  Black, 
128  U.  S.,  40.     See  Ex  parte  Penn.  Co.,  137  U.  S.  451.) 

Mandamus,  when  will  not  issue. — The  writ  of  man- 
damus will  not  issue  when  there  is  any  other  appro- 
priate remedy  (United  States  v.  Addison,  22  How. 
174;  Ex  parte  Newman,  14  Wall.  152;  Morrison  v. 
District  Court,  147  U.  S.  14);  so  it  will  not  issue  to 
revise  a  decree  or  judgment,  the  remedy  being  by 
error  or  appeal  (Ex  parte  Newman,  14  Wall.  152;  Ex 


§  203  SIPREMK    COUKT— JURISDICTION.  718 

pai-te  Flippin,  94  U.  S.  348;  Ex  parte  Loring,  94  U. 
S.  418;  Ex  parte  Scliwab,  98  U.  S.  240);  so  it  caunot 
bo  issued  to  reverse  a  judgment  and  direct  the  court 
to  issue  a  mandamus  on  its  part  (Ex  parte  De  Groot, 
G  Wall.  497);  but  if  the  circuit  court  refuses  to  allow 
an  appeal,  mandamus  lies  to  compel  it  to  do  so  (Ex 
parte  Jordan,  94  U.  S.  248;  Ex  parte  Railrojid  Co.,  95 
U.  S.  221);  but  petitioner  must  show  a  clear  right 
to  the  appeal  (Ex  parte  Cutting,  94  U.  S.  14);  and 
if  the  judge  is  ready  to  allow  the  appeal,  but  the 
application  thei-efor  was  irregular,  mandamus  will 
not  be  awarded.  (Mussina  v.  Cavazos,  20  How.  280.) 
Mandamus  will  not  lie  to  compel  the  circuit  court 
to  dismiss  a  suit  for  want  of  jurisdiction  (Re  Atlantic 
City  Ry.  Co.,  1G4  U.  S.  633).  A  mandamus  will  not 
be  issued  to  compel  the  court  to  withdraw  a  plea 
and  direct  a  different  issue,  for  error  in  the  proceed- 
ings can  only  be  corrected  by  writ  of  error  (Bank 
V.  Sweeny.  1  Peters.  507);  nor  to  compel  a  judge  to 
vacate  an  order,  for  it  is  not  the  proper  process  to 
correct  an  erroneous  judgment.  (Ex  parte  Hoyt,  13 
Peters,  279.  See  Re  Burdett.  127  U.  S.  771.)  Man- 
damus will  not  lie  to  compel  a  lower  court  to  decide 
a  case  in  a  particular  way  (Re  Parsons,  150  U.  S. 
150;  Morrison  v.  District  Court,  447  U.  S.  14).  It  will 
not  lie  to  compel  a  judge  to  resettle  a  bill  of  excep- 
tions alleged  to  be  incorrect  as  settled  (Re  Louis*  F. 
Streep,  150  U.  S.  207).  This  court  cannot,  by  man- 
damus, correct  the  judicial  errors  committed  by  an 
inferior  court  in  the  progi'ess  of  a  cause;  that  is 
the  otlice  of  a  writ  of  error  or  an  appeal.  (Ex  parte 
Perrj',  102  U.  S.  183;  Ex  parte  Whitney,  13  Peters, 
404;  Ex  parte  Newman,  14  Wall.  152;  Ex  parte  I^or- 
ing.  94  U.  S.  418;  Ex  parte  Schwab.  98  U.  S.  240;  Ex 
parte  Burtis,  103  U.  S.  238;  Ex  parte  Des  Moines 
etc.  R.  Co.,  103  U.  S.  794;  Ex  parte  Connecticut  Mut. 
Ins.  Co.;  Ex  parte  Hoard,  105  U.  S.  578;  Ex  parte 


719  SUPKEME    COURT— JURISDICTION.  §  203 

Baltimore  &  O.  R.  Co.,  108  U.  S.  566;  Ex  parte  De 
Groot,  6  Wall.  497;  Re  Parsons,  150  U.  S.  150;  Re 
Milton  Humes,  149  U.  S.  192;  American  Const.  Co. 
V.  Jacksonville,  Tampa  &  Key  West  Ry.  Co.,  148 
U.  S.  372;  Morrison  v.  District  Court,  147  U.  S.  14.) 

(1)  To  control  political  department. — While  the 
political  department  of  the  government  has  not  part- 
ed with  its  power  over  a  matter,  the  intervention  of 
the  judicial  department  cannot  be  invoked  to  compel 
action.  (United  States,  Boyntou  v.  Blaine,  139  U.  S. 
306;  City  of  New  Orleans  v.  Paine,  147  U.  S.  261.) 
Mandamus  will  not  issue  to  compel  the  secretary  of 
state  to  pay  money  in  his  hands  to  one  party  which 
is  claimed  by  another  party,  and  the  right  to  which 
is  in  litigation  between  them.  (Bayard  v.  United 
States,  White,  127  U.  S.  246.)  The  courts  will  not 
interfere  with  the  executive  officers  of  the  govern- 
ment in  the  exercise  of  their  ordinary  official  duties. 
(United  States,  Miller  v.  Raum,  135  U.  S.  200.)  Man- 
damus cannot  issue  in  a  case  where  its  effect  is  to 
direct  or  control  the  head  of  an  executive  department 
in  the  dischai'ge  of  an  executive  duty  involving  the 
exercise  of  judgment  or  discretion.  (United  States. 
Boynton  v.  Blaine,  139  U.  S.  306.)  When  executive 
officers  refuse  to  act  at  all,  where  the  law  requires 
them  to  act,  or  when  they  refuse  to  perform  a  mere 
ministerial  duty,  a  mandamus  lies  to  compel  them  to 
act  or,  to  perform  such  ministerial  duty.  (United 
States,  Miller  v.  Raum,  135  U.'  S.  200.  See  United 
States  V.  Brown,  41  Fed.  Rep.  481.)  Mandamus  lies 
to  compel  a  party  to  do  that  which  it  is  his  duty 
to  do,  but  can  confer  no  new  authority,  and  the  party 
coerced  must  have  the  power  to  perform  the  act 
(State  of  Missouri  v.  Murphy,  170  U.  S.  78.) 

(2)     Cannot  control  discretion. — A  writ  of  manda- 
mus will  not  be  issued  to  control  a  judge  in  the  ex- 


§  203  SUPREME    COURT— JUKISDICTION.  720 

ercise  of  his  discretion  (Ex  parte  Milwaukee  R.  Co.. 
5  Wall.  188);  as  in  approving  or  rejecting  a  bond. 
(Ex  parte  Milwauliee  R.  Co.,  5  Wall.  188);  or  in  re- 
fusing a  supersedeas  (re  Haberman  Mfg.  Co.,  147  U. 
S.  525).    If  an  inferior  tribunal  has  exercised  its  judg- 
ment in  a  matter  wherein  authorized  by  law,  manda- 
mus will  not  issue  to  reverse  its  judgment  (Ex  parte 
Taylor,  14  How.  3;  Ex  parte  Many,  14  How.  24);  so  of 
orders  in  exercise  of  his  autliority  (Ex  parte  Whitney, 
13  Peters,  404);  nor  can  it  be  compelled  to  vacate 
an  order  (Ex  parte  Loring,  94  U.  S.  418);  or  to  set 
aside  a  default  and  inquest  thereon  (Ex  parte  Rob- 
erts, 6  Peters,  21G;  nor  to  vacate  an  injunction  is- 
sued in  the  case.     (Ex  parte  Schwab,  98  U.  S.  240.) 
If  a  mandate  leaves  the  circuit  judge  to  determine 
according  to  right  and  equity,  mandamus  will  not  is- 
sue to  control  his  decision.     (Ex  parte  Railway  Co., 
101  U.  S.  711.)     A  mandamus  will  not  be  issued  to 
control  the  conduct  of  a  judge  in  proceedings  which 
take  place  before  the  trial  (Ex  parte  Bradstreet,  8 
Peters,  5S8);  as  the  allowance  or  refusal  of  amend- 
ments (Ex  parte  Bradstreet,  6  Peters,  774;  S.   C,  7 
Peters,  034);  or  amendments  to  the  record  (Ex  parte 
Many,   14  How.  24);  or  where  he  I'efuses  to  allow 
double   pleas    (Ex   parte   Davenport,    G   Peters,   GGl); 
or  where  he  refuses  to  quash  a  writ  of  execution 
(Ex  parte  Flippin,  94  U.  S.  348);  or  if  he  refuses  to 
discharge  defendant  from  ai'rest  on  bail  for  a  differ- 
ent amount  (,Ex  parte  Taylor,  14  How.  3);  or  to  com- 
pel a  judge  to  proceed  according  to  the  rules  of  chan- 
cery practice  (Ex  parte  Whitney,  13  I'eters,  404);  or 
to   compel   him   to   issue  execution,   although  he  re- 
fuses to  do  so  (Ransom  v.  New  lork,  20  How.  581); 
or  to  control  his  discretion  in  gi-anting  or  refusing 
a  new  trial  (Life  tt  F.  Ins.  Co.  v.  Wilson,  8  Peters, 
291;  Ex  parte  Bradstreet,  8  Peters,  588);  or  if  he  re- 
fuses to  issue  a  warrant  for  a  deserter  because  he 


721  SUPREME   COURT— JURISDICTION.  §S  204-205 

does  not  think  the  evidence  sufficient.  (U.  S.  v.  Law- 
rence, 3  Dall.  45.)  The  judgment  of  the  circuit  court 
upon  a  plea  to  the  jurisdiction  will  not  be  reviewed 
on  a  petition  for  mandamus.  (Ex  part  Raihvay  Co., 
103  U.  S.  794.)  This  court  cannot  by  mandamus  com» 
pel  an  inferior  court  to  reverse  its  decision.  (Kx  parte 
Burtis,  103  U.  S.  238.)  That  mandamus  will  not  issue 
to  control  judicial  discretion.  (Ex  parte  Milwaukee 
etc.  R.  Co.,  5  Wall.  1S8;  Ex  parte  Hoard,  105  U,  S. 
578;  Ex  parte  Virginia  ("Virginia  v.  Rives"),  100  U.  S. 
313;  Ex  parte  Sawyer,  21  Wall.  235;  Ex  parte  Den- 
ver etc.  R.  Co.,  101  U.  S.  711.)  The  duty  must  not 
only  be  not  discretionary,  but  it  must  exist  at  the  time 
when  the  application  is  made.  The  obligation  must 
be  both  peremptory  and  plainly  defined;  the  law  must 
not  only  authorize  the  act,  but  it  must  require  the  act 
to  be  done  (United  States  v.  Lamont,  155  U.  S.  303.) 

§  204.  Issues  of  fact. — The  trial  of  issues  of 
fact  in  the  supreme  court  in  all  actions  at  law 
against  citizens  of  the  United  States  shall  be  by 
jury.     (Rev.  Stats,  sec.  689.) 

§  205.  Appellate  jurisdiction. — The  supreme 
court  shall  have  appellate  jurisdiction  in  the  cases 
hereinafter  specially  provided  for.  (Rev.  Stats, 
sec.  690.) 

Jurisdiction — How  conferred.— See  TJ.  S.  Const.. 
art.  Ill,  sec.  2,  cl.  2;  Wales  v.  Whitney,  114  U.  S. 
5G4.  The  appellate  poAvers  of  the  supreme  court  are 
given  by  the  Constitution,  but  they  are  limited  and 
regulated  by  statute.  (Durousseau  v.  U.  S.,  6  Cranch, 
307;  National  Exch.  Bank  v.  Peters,  144  U.  S.  570.) 
Congress  has  described  the  jurisdiction,  and  this  de- 
scription implies  a  negative  to  the  txr  rcise  of  .sucii  ap^ 
pellate  power  if  not  comprehended  within  it.  (Du- 
Fed.  Peoc— 61. 


§  205  SUPREME   COURT— JUBISDICTION.  7'22 

rousseau  v.  U.  S.,  6  Crancli.  314;  U.  S.  v.  Yoniiff,  94 
U.  S.  259;  Ex  parte  Vallandifiham.  1  Wall.  251;  Rail- 
road Co.  V.  Grant,  98  U.  S.  401.)  Appellate  jurisdic- 
tion in  criminal  cases  should  be  conferred  in  clear 
and  explicit  language  (Cross  v.  United  States,  145 
U.  S.  571). 

Appellate  jurisdiction. — In  every  case  to  which  the 
Judicial  power  extends,  and  in  which  original  juris- 
diction is  not  given,  the  supreme  court  may  exei'clse 
its  appellate  jurisdiction.  (Cohens  v.  Virginia,  6 
Wheat.  2G4;  Marbury  v.  Madison,  1  Cranch,  137;  Ex 
pai'te  Yallandigham,  1  Wall.  252;  Ex  parte  Yerger, 
8  Wall.  98;  Martin  v.  Hunter,  1  Wheat.  304;  United 
States  V.  Coe,  155  U.  S.  70.)  Where  original  jurisdic- 
tion is  founded  on  the  character  of  the  parties,  the 
judicial  power  cannot  be  exercised  in  its  appellate 
form  (Osborn  v.  Bank  of  United  States,  9  Wheat. 
738);  but  where  it  is  founded  on  the  nature  of  the 
controversy  the  appellate  jurisdiction  attaches.  (Mar- 
tin V.  Hunter,  1  Wheat.  304;  Cohen  v.  Virginia,  6 
Wheat.  264.)  The  essential  criterion  of  appellate  ju- 
risdiction is,  that  it  raises  and  corrects  proceedings 
in  a  cause  already  instituted.     (Marbury  v.  Madison, 

1  Cranch,  137.)  In  prize  cases  the  supreme  court 
can  exercise  appellate  jurisdiction  only.  (The  Alicia, 
7  Wall.  571.)  The  appellate  power  is  not  limited  to 
any  particular  courts.  (Martin  v.  Hunter,  1  Wheat. 
304;  Cohens  v.  Virginia,  6  Wheat.  2G4;  Dodge  v.  Wool- 
sey,  18  How.  331;  Ableman  v.  Booth,  21  How.  50G; 
3  Wis.  1;  Ferris  v.  Coover,  11  Cal.  176;  Piqua  Bank  v. 
Knoup,  0  Ohio  St.  342;  16  How.  309.)  It  may  be  exer- 
cised over  territorial  courts  (Benner  v.  Porter,  9  How. 
244;  Hunt  v.  Palao,  4  How.  589;  Freeborn  v.  Smith, 

2  Wall.  173),  but  not  without  legislation  by  Congress 
(McNulty  V.  Batty.  10  How.  79),  or  over  State  courts 
on  questions  involving  the  constitutionality  of  legal 
enactments.     (Bridge  Prop.  v.  Hoboken  Co.,  1  Wall. 


723  SUPREME   COUKT— JURISDICTION.  §  205 

116;  Fiirman  v.  Nicbol,  8  "Wall.  57;  Delmas  v.  Ins. 
Oo.,  14  Wall.  667:  Home  Ins.  Co.  v.  Augusta,  98  U.  S. 
116;  Ferris  v.  Coover,  11  Cal.  176;  but  see  Johnson 
V.  Gordon,  4  Cal.  368.)  In  actions  witliin  tbe  admi- 
ralty jurisdiction  the  appellate  jurisdiction  of  the 
supreme  court  over  questions  national  in  chai'acter 
cannot  be  limited  by  the  fact  that  plaintiff  has  elected 
to  pursue  his  common-law  remedy  in  a  State  court 
(Belden  v.  Chase.  150  U.  S.  674).  But  it  cannot  ex- 
ercise appellate  jurisdiction  over  the  court  of  claims 
(Gordon  v.  U.  S.,  2  Wall.  561),  nor  can  Congress  confer 
appellate  jurisdiction  on  the  inferior  courts  from  the 
decisions  of  the  State  courts.  (Patrie  v.  Murray,  43 
Barb.  323;  Wetherbee  v.  Johnson,  14  Mass.  412). 
Congress  has  power  to  confer  upon  the  supreme  court 
jurisdiction  to  review  the  decree  of  the  court  of  pri- 
vate land  claims  (United  States  v.  Coe,  155  U.  S. 
76).  The  principle  on  which  appellate  jurisdiction 
from  State  courts  is  allowed  is  to  grant  efficient 
and  just  means  of  self  protection.  (Scott  v.  Jones, 
5  How.  34:3.)  The  supreme  court's  jurisdiction  over 
inferior  courts  is  strictly  appellate.  (Gaines  v.  Relf, 
15  Peters,  17).  The  jurisdiction  on  appeal  must  be 
conferred  by  Congress  (Barry  v.  Mercein,  5  How.  119; 
Ex  parte  McCardle,  7  Wall.  506;  U.  S.  v.  New  Bed- 
ford Br.,  1  Wood.  &  M.  401,  Fed.  Cas.  No.  15867;  Liv- 
ingston V.  Van  Ingen,  9  Johns.  507;  Marbury  v.  Mad- 
ison, 1  Crauch,  137;  Ex  parte  Bollman,  4  Cranch,  75; 
U.  S.  V.  Hamilton,  3  Dull.  17;  Ex  parte  Kearney,  7 
Wheat.  38;  Weston  v.  Charleston,  2  Peters,  449;  Ex 
parte  Cranch,  5  Peters,  190;  American  Const.  Co.  v. 
Jacksonville  T.  &  K.  By.  Co.,  148  U.  S.  372),  with 
such  exceptions  and  under  such  regulations  as  Con- 
gress maj^  make  (Scott  v.  Jones,  5  How.  374;  Ex  parte 
McCardle,  7  Wall.  506;  Ex  parte  Yerger,  8  Wall.  98; 
Durousseau  v.  U.  S.,  6  Cranch,  313;  Ex  parte  Vallan- 
digham,  1  Wall.  252;  U.  S.  v.  More,  8  Cranch,  159; 


§  205  SUPREME    COURT— JURISDICTION.  724 

Murdofk  v.  Memphis,  20  "Wall.  590;  Martin  v.  Hunter, 
1  ^Y]leat.  304),  and  the  action  of  Congress  excludes 
State  legislation.  (Houston  y.  Moore,  5  Wheat.  1; 
Prigg  V.  Commonwealth,  16  Peters,  539.)  When  ap- 
pellate jurisdiction  is  intended  to  be  conferred  on  the 
supreme  court  in  criminal  eases,  it  should  be  done  in 
clear  and  explicit  language  (Cross  v.  United  States, 
145.  U.  S.  ."1).  All  appellate  jurisdiction  must  be  ex- 
ercised in  pursuance  of  positive  statutes  fully  within 
constitutional  grants.  (Wiscart  v.  Dauchy,  3  Dall. 
S21;  Clarke  v.  Bazadone,  1  Cranch,  212;  U.  S.  v. 
Moore.  3  Cranch.  1.59;  Durousseau  v.  U.  S.,  6  Cranch, 
307;  Ex  parte  Kearney,  7  Wheat.  38;  Ex  parte  Wat- 
kins,  3  Peters,  193.)  The  power  of  the  supreme  court 
to  issue  a  mandamus  is  in  the  exercise  of  an  appel- 
late jurisdiction  only.  (Marbury  v.  Madison.  1 
Cranch,  137;  Ex  parte  Yerger,  8  Wall.  97.)  So  as  to 
the  writ  of  habeas  corpus.  (Ex  parte  Bollman,  4 
Cranch,  75.)  The  power  to  award  this  writ  by  any 
court  of  the  United  States  must  be  given  by  law. 
<Ex  parte  Bollman,  4  Cranch,  75.)  It  exists  in  all 
cases  of  commitment  by  the  judicial  authority  of 
the  United  States  not  expressly  excepted  by  Con- 
gress. (Kaine's  Case,  14  How.  103;  Ex  parte  Yerger, 
8  Wall.  99.)  It  is  only  when  the  proceedings  below 
are  entirely  void  that  relief  may  be  given  on  review 
by  habeas  corpus.  (Ex  parte  Parks,  93  U.  S.  18.)  The 
repeal  of  an  act  authorizing  appeal  in  cases  of  habeas 
corpus  does  not  affect  the  jurisdiction  antecedently 
exercised.  (Ex  parte  McCardle,  7  Wall.  506.)  An 
enactment  of  the  Confederate  States  enforced  as  a 
law  of  one  of  the  States  composing  the  confederacy 
is  a  statute  of  such  State,  as  to  the  jurisdiction  of 
the  supreme  court  over  judgments  and  decrees  in 
State  courts.  (Ford  v.  Surget,  97  U.  S.  594;  Williams 
V.  Bruffy,  96  U.  S.  176.)  The  supreme  court  on  writ 
of  error  is  confined  to  the  exceptions  and  cannot  de- 


725  SUPEEME   COURT— JURISDICTIOIT.  §  206 

termine  questions  of  fact,  or  the  weight  of  evidence 
(New  Yorii  L.  E.  »fc  W.  R.  Co.  v.  Winter,  143  U.  S. 
60;  Benson  M.  &  S.  Co.  v.  Alta  Min.  &  S.  Co.,  145 
U.  S.  42S;  but  see  Wetmore  v.  Kymer,  1G9  U.  S.  115). 
The  supreme  court  will  not  determine  a  controversy 
lintwhich  the  plaintiff  in  error  has  become  the  dominis 
litis  on  both  sides  (South  Spring  Hill  G.  M.  Co.  v. 
Amador  Medean  G.  M.  Co.,  145  U.  S.  300).  Except 
in  cases  of  gross  abuse  of  discretion  the  supreme 
court  on  writ  of  error  will  not  review  discretionary 
rulings  (Mexican  Cent.  liy.  Co.  v.  Pinkney,  149  U.  S. 
194).  The  question  of  the  jurisdiction  of  the  su- 
preme court,  and  the  court  from  which  the  record 
comes  will  be  determined  by  the  supreme  court  of 
its  own  motion  (Connell  v.  Smiley,  156  U.  S.  335; 
Campbell  v.  Porter,  162  U.  S.  478;  Mattingly  v.  North- 
western Virginia  R.  Co.,  158  U.  S.  53;  Koenigsberger 
V.  Richmond  Silver  M.  Co.,  158  U.  S.  41).  The  juris- 
diction must  affirmatively  appear  upou  the  record  or 
the  supreme  court  will  deny  the  jurisdiction  (.Coi- 
orado  Cent.  M.  Co.  v.  Turck,  150  U.  S.  138). 

§  206.     Appeals  from  district  and  circuit  courts. 

— Hereafter,  all  appeals  by  writ  of  error  or  other- 
wise from  said  district  courts  shall  only  be  subject 
to  review  in  the  supreme  court  of  the  United 
States,  or  in  the  circuit  court  of  appeals  hereby  es- 
tablished, as  is  hereinafter  provided,  and  the  re- 
view, by  appeal,  by  writ  of  error,  or  otherwise,  from 
the  existing  circuit  courts  shall  be  had  only  in  the 
supreme  court  of  the  United  States,  or  in  the  cir- 
cuit court  of  appeals  hereby  established  according 
to  the  provisions  of  this  act  regulating  the  same. 
(26  U.  S.  Stats,  sec.  2734.) 

Note.— The  supreme  court  has  no  jurisdiction  of  an 
appeal  from  a  decree  of    the  circuit    court    rendered 


§  207  SUPKEME   CUURT— JURISDICTION.  726 

Oct.  1,  1891,  iu  a  case  .pending  March  3,  1891,  under 
the  joint  resolution  of  that  date  preserving  jurisdic- 
tion in  pending  cases  (Little  Rock  &  M.  R.  Co.  v. 
East  Tennessee,  Va.,  Ga.  R.  Co.,  159  U.  S.  698).  By 
the  act  of  March  3,  1891,  the  jurisdiction  of  the  su- 
preme court  in  cases  dependent  upon  diverse  citizen- 
ship was  taken  away  (Cincinnati  S.  &  L.  Co.  v.  Grand 
Rapids  S.  D.  Co.,  14G  U.  S.  5-i). 

§  207.  Appeals  direct  to  supreme  court  from 
district  and  circuit  courts. — Appeals  or  writs  of  er- 
ror may  be  taken  from  the  district  courts,  or  from 
the  existing  circuit  courts  direct  to  the  supreme 
court  in  the  following  cases:  In  any  case  in  which 
the  jurisdiction  of  the  court  is  in  issue;  in  such 
cases  the  question  of  jurisdiction  alone  shall  be 
certified  to  the  supreme  court  from  the  court  below 
for  decision.  From  the  final  sentences  and  decrees 
in  prize  causes.  In  cases  of  conviction  of  a  capital 
crime.  In  any  caae  that  involves  the  construction 
or  application  of  the  Constitution  of  the  United 
States.  In  any  case  in  which  the  constitutionality 
of  any  law  of  the  United  States,  or  the  validity  or 
construction  of  any  treaty  made  under  its  author- 
ity, is  drawn  in  question.  In  any  case  in  which  the 
constitution  or  law  of  a  State  is  claimed  to  be  in 
contravention  of  the  Constitution  of  the  United 
States.  Nothing  in  this  act  shall  affect  the  juris- 
diction of  the  supreme  court  in  cases  appealed  from 
the  highest  court  of  a  State,  nor  the  construction  of 
tlie  statute  providing  for  review  of  such  cases. 
(Act  of  March  3,  1891;  26  U.  S.  Stats.  827,  sec.  5; 
as  amended  29  U.  S.  Stats.  492.). 


727  SUPREME    COURT— JURISDICTION.  g  207 

Appeals  directly  to  supreme  court.— In  the  cases 
enumerated  in  the  statute,  appeals  may  be  taken 
directly  to  the  supreme  court  from  the  circuit 
or  district  court,  but  cannot  be  talcen  in  other 
cases  except  such  as  were  mentioned  in  the  joint 
resolution  of  March  3,  1891  (Mason  v.  Pewabic  Min. 
Co.,  153  U.  S.  3G1;  Ogden  v.  United  States,  148  U.  S. 
390).  The  right  of  appeal  directly  to  the  supreme 
court  is  an  absolute  right  and  the  circuit  courts 
have  no  authority  to  allow  or  disallow  such  an  ap- 
peal (Pullman's  Palace  Car.  Co.  v.  Cent.  Transp.  Co., 
71  Fed.  Rep.  809).  A  writ  of  error  from  the  supreme 
court  to  tlie  circuit  court  does  not  reach  the  proceed- 
ings in  tlie  circuit  court  of  appeals,  refusing  to  allow 
the  cause  to  be  doclieted  and  the  record  to  be  filed 
therein,  on  the  ground  that  the  cause  should  be 
taken  directly  to  the  supreme  court  (Lutcher  v. 
United  States,  157  U.  S.  427).  The  circuit  court  has 
no  authority  to  grant  an  appeal  to  the  supreme  court 
of  the  United  States  without  requiring  bond  for  costb 
(In  re  Newman,  79  Fed.  Rep.  615).  Where  the  su- 
preme court  decides  that  the  circuit  court  has  juris- 
diction of  a  cause  and  remands  the  same  for  the 
taking  of  an  account  the  circuit  court  of  appeals  can- 
not on  a  subsequent  appeal  reopen  the  question  of 
jurisdiction  (Nashua  &  L.  R.  Corp.  v.  Boston  &  L. 
R.  Corp.,  5  U.  S.  App.  97;  51  Fed.  Rep.  929). 

(1)  When  the  jurisdiction  of  court  is  in  issue. 
— The  jurisdiction  of  court  is  not  drawn  in 
question  by  the  denial  of  the  right  of  plaintiff  t-o 
the  judgment  entered  in  its  favor,  nor  in  the  author- 
ity of  the  court  to  enter  the  judgment  in  question, 
and  therefore  an  appeal  cannot  be  taken  from  the 
circuit  court  to  the  supreme  court  (Woodbridge  & 
Turner  Eng.  Co,  v.  Ritter.  70  Fed.  Rep.  079).  When 
a  final  judgment  or  decision  has  been  rendered  in  a 
district  or  circuit  court  involving  both  questions  of 


§  207  SUPREME    COURT— JUKISDICTION.  728 

jurisdiction  and  other  questions,  the  party  against 
Avhoui  it  is  rendered  may  elect  to  talie  his  writ  of 
error  to  the  supreme  court  upon  the  question  of  juris- 
diction alone,  or  to  the  circuit  court  of  appeals  on  the 
whole  case.  When  he  chooses  the  latter,  the  circuit 
court  of  appeals  has  jurisdiction  to  determine  the 
question  of  the  jurisdiction  of  the  court  below,  as  well 
as  all  other  questions  in  the  case  (Rust  v.  United 
Waterworks  Co.,  3G  U.  S.  App.  167;  70  Fed.  Kep. 
129;  Baltimore  &  Ohio  Ky.  Co.  v.  Meyers,  18  U.  b. 
App.  5(J'J;  G2  Fed.  Hep.  307;  American  Sugar  Ref.  Co. 
V.  Johnson,  13  U.  S.  App.  681;  60  Fed.  Rep.  503; 
Texas  &  P.  R.  Co.  v.  Bloom,  23  U.  S.  App.  143;  60 
Fed.  Rep.  979;  King  v.  McLean  Asylum,  21  U.  S. 
App.  407;  t}4  Fed.  Rep.  325;  United  States  v.  Jahn. 
155  U.  S.  109;  Robinson  v.  Caldwell,  165  U.  S.  359). 
And  if  an  appeal  is  taken  to  the  circuit  court  of  ap- 
peals and  the  whole  case  has  been  determined  on 
its  merits,  and  appeal  cannot  then  be  taken  to  the 
supreme  court  direct  from  the  circuit  court  on  the 
question  of  jurisdiction,  such  case  can  be  taken  to 
the  supreme  court  only  upon  certiorari  after  tiual  de- 
cree upon  the  merits  in  the  circuit  court  of  appeals 
(Robinson  v.  Caldwell,  165  U.  S.  359).  The  supreme 
court  alone  has  power  to  review  cases  in  which  the 
only  question  on  appeal  is  the  jurisdiction  of  the 
court  below  (United  States  v.  Severens,  37  U.  S.  App. 
622;  71  Fed.  Rep.  768;  Cabot  v.  McMaster,  24  U.  S. 
App.  571;  65  Fed.  Rep.  533;  United  States  v.  Jahn, 
155  U.  S.  109).  The  determination  of  the  question 
of  jurisdiction  by  the  supreme  court  cannot  be  had 
until  after  final  decree  in  the  circuit  court  (Gates 
V.  Bucki,  12  U.  S.  App.  69;  53  Fed.  Rep.  961).  A 
question  wliether  jurisdiction  has  been  acquired  by 
proi)er  service  of  process  is  sufficient  to  carry  the 
appeal  to  the  supreme  court  (Slu'i)nrd  v.  Adams,  168 
U.  S.  618).     The  question  of  jurisdiction  is  not  sutfi- 


729  SUPREME    COURT— JUKISDICTION.  §  207 

ciently  specific  to  be  cei-tifled  where  it  was  not  raised 
in  the  circuit  court,  and  no  hint  is  given  as  to  what 
objection  exists  (McHeni-y  v.  Alford,  1G8  U.  S.  651). 
An  assignment  of  errors  in  the  U.  S.  district  court 
after  the  term  at  which  the  decree  was  entered,  di- 
rected by  that  court  to  be  filed  nunc  pro  tunc,  and 
filed  as  of  that  term,  is  not  a  sufficient  certificate' 
to  the  supreme  court  of  the  question  of  the  jui'isdic- 
tion  of  that  court  (The  Bayonne,  159  U.  S.  87).  The 
allowance  of  an  appeal  cannot  be  treated  as  a  certifi- 
cate, although  want  of  jurisdiction  was  the  ground 
of  appeal,  where  the  prayer  for  appeal  specifies  no 
ground  of  jurisdiction,  but  aslvs  that  the  whole  rec- 
ord be  sent  up  (The  Bayonne,  159  U.  S.  687).  When 
the  jurisdiction  of  the  circuit  court  was  in  issue,  a 
certificate  of  such  question  of  jurisdiction  to  the  su- 
preme court  for  decision  is  necessary  or  the  case  is 
not  properly  in  the  court  (Ansbro  v.  United  States, 

159  U.  S.  695;  Davis  &  Rankin  Bldg.  &  Mfg.  Co.  v. 
Barber,  157  U.  S.  673;  Colvin  v.  Jacksonville.  157 
U.  S.  368;  Moran  v.  Hagerman,  151  U.  S.  329;  May- 
nard  v.  Hecht.  151  U.  S.  324;  Van  Wagenan  v.  Sewall, 

160  U.  S.  369;  Chappell  v.  United  States,  160  U.  S. 
499).  The  absence  of  such  certificate  cannot  be  helped 
out  by  resort  to  the  petition  for  writ  of  error,  nor  to 
the  assignment  of  error.  (Maynard  v.  Hecht,  151  U. 
S.  324.)  The  question  of  jurisdiction  is  sufficiently 
certified  where  the  judgment  and  bill  of  exceptions 
recite  that  the  cause  was  dismissed  for  want  of  juris- 
diction; and  the  district  judge  in  the  order  allowing 
the  writ  of  error  certified  in  effect  that  it  was  al- 
lowed upon  the  question  of  jurisdiction  (Re  Lehigh 
Min.  &  JMfg.  Co.,  156  U.  S.  322).  A  plea  which  was 
not  a  plea  to  the  jurisdiction,  but  a  plea  in  bar,  which 
did  not  seek  to  oust  the  jurisdiction  of  that  court, 
does  not  present  a  question  for  jurisdiction  which 
the  supreme  court  can  review  (Texas  &  Pac.  Ry.  Co. 


§SD7  SUPREME    COURT— JURISDICTION,  730 

V.  Saunders  (151  U.  S.  105.)  The  question  of  juris- 
diction must  have  been  in  issue  in  the  circuit  court 
and  decided  against  the  party  seeking  to  bring  it 
before  the  supreme  court  for  determination  (May- 
nard  v.  Hocht,  151  U.  S.  324).  It  is  a  sufficient 
certification  to  the  supreme  court  of  the  question 
of  jurisdiction  of  the  circuit  covu-t  that  the  petition 
of  appeal  is  upon  that  sole  ground,  and  that  that 
court  in  allowing  the  appeal  states  that  the  ap])(>al 
is  granted  "solely  upon  the  question  of  jurisdiction," 
and  directs  the  portions  of  the  record  to  be  certified 
to  the  supreme  court  to  present  that  question  (Shields 
V.  Coleman.  157  U.  S.  16S;  Smith  v.  McKay,  IGl  U.  S. 
355).  T\  here  the  record  shows  that  the  only  matter 
tried  and  decided  was  a  demurrer  to  the  plea  to  the 
jurisdiction,  and  the  petition  on  which  the  writ  of 
error  was  allowed  asks  for  a  review  of  the  judgment 
that  the  circuit  court  had  no  jurisdiction,  the  ques- 
tion is  sufficiently  certified  (Interior  Construction  & 
Impr.  Co.  V.  Gibney,  IGO  U.  S.  217).  In  the  absence 
of  any  certificate, of  the  question  of  the  jurisdiction 
of  the  circuit  court,  its  order  entered  Nov.  28,  1891, 
dismissing  a  case  for  lack  of  jurisdiction,  is  not  sub- 
ject to  review  on  writ  of  error  from  the  supreme 
court  (Davis  v.  Goisslor,  1G2  U.  S.  290).  Where  the 
jurisdiction  of  the  lower  court  is  in  issue  and  the 
case  is  certified  for  decision  the  certificate  must  be 
granted  during  the  term  at  which  the  judgment  or 
decree  is  rendered  (Colvin  v.  Jacksonville,  158  U.  S. 
450).  A  party  whose  suit  has  been  dismissed  by  the 
U.  S.  circuit  court  for  want  of  jurisdiction  has  the 
I'iglit  to  have  such  judgment  reviewed  by  the  supreme 
court  (Wetuiore  v.  Uyiiier,  169  U.  S.  115).  Where 
the  question  is  as  to  the  jurisdiction  of  the  court  in 
equity  based  on  the  alleged  existence  of  a  complete 
remedy  at  law,  the  question  cannot  be  certified  to  the 
supreme  court,  for  the  question  in  such  case  is  not 
to  the   want  of  power,    but  to   the   want  of  equity 


731  SUPREME  COURT— jukiSdiction.  §  207 

(Smith  V.  McKay,  IGl  U.  S.  355).  The  statute  does  not 
authorize  a  direct  appeal  to  the  supreme  court  on  a 
question  involvini,^  tlie  jurisdiction  of  the  circuit  court 
over  another  suit  previously  determined  in  the  same 
court  (Carey  v.  Houston  &  T.  C.  R.  Co.,  150  U.  S.  170; 
Ex  parte  Lennon,  150  U.  S.  393).  The  only  question 
that  can  be  considered  in  the  supreme  court  when  the 
question  of  the  jurisdiction  of  the  trial  court  is  cer- 
tified is  that  of  its  jurisdiction.  (Schunk  v.  Moline 
M.  &  S.  Co.,  147  U.  S.  500;  Re  Lehigh  M.  &  M.  Co., 
156  U.  S.  322;  Greeley  v.  Lowe,  155  U.  S.  58;  May- 
nard  v.  Hecht,  151  U.  S.  324;  Mexican  Cent.  Ry.  Co. 
V.  Pinliney,  149  U.  S.  194.) 

(2)  In  case  of  conviction  of  capital  crime. — In 
the  original  act  creating  the  circuit  court  of  appeals 
(20  U.  S.  Stats.  827)  the  supreme  court  had  jurisdic- 
tion of  cases  brought  directly  from  the  circuit  and 
district  courts  where  the  cases  involved  a  conviction 
of  a  capital  or  other  infamous  crime.  This  provision 
was  subsequently  amended  so  as  to  withdraw  from 
the  supreme  court  jurisdiction  over  infamous  crimes 
not  capital,  and  to  confer  it  upon  the  circuit  courts  of 
appeals  (29  U.  S.  Stats.  492).  At  present,  therefore, 
appeals  may  be  taken  directly  to  the  supreme  court 
only  in  such  criminal  cases  as  are  capital.  (Id.)  Ap- 
peals from  habeas  corpus  proceedings  can  no  longer 
be  taken  directly  to  the  supreme  court  in  criminal 
cases,  except  in  the  cases  mentioned  in  the  section 
5  of  the  act  of  1891  (Cross  v.  Burke,  146  U.  S.  82;  re 
James  Lennon,  150  U.  S.  393).  The  final  judgment 
of  a  court  in  case  of  conviction  of  capital  or  other- 
wise infamous  crime  is  revicAvable  only  upon  writ 
of  error  and  not  by  appeal  (Bucklin  v.  United  States, 
159  U.  S.  680). 

(3)  When  Federal  question  is  involved.— When 
an  appeal  is  taken  to  the  supreme  court  direct  on 


§  207  SUPREME   COURT— JURISDICTION.  732 

the  ground  that  a  Federal  question  is  involved,  and 
an  appeal  is  also  taken  to  the  circuit  court  of  ap- 
peals, the  latter  court  will  stay  its  hand  until  the 
appeal  in  the  supreme  court  is  disposed  of  (Pullman's 
Palace  Car  Co.  v.  Central  Trans.  Co.,  83  Fed.  Rep. 
1),  A  party  in  the  circuit  court  may  resort  to  the 
supreme  court  for  a  determination  of  a  constitutional 
question,  and  while  such  appeal  is  pending  may  ap- 
peal to  the  circuit  court  of  appeals  upon  the 
01  her  questions  involved.  (Pullman's  Palace  Car 
Co.  V.  Central  Transp.  Co.,  39  U.  S,  xVpp.  307;  76  Fed. 
Rep.  401.)  An  appeal  from  a  decision  of  a  circuit 
court  involving  a  question  of  the  United  States  consti- 
tutionality of  a  State  statute  is  within  the  jurisdic- 
tion of  the  supreme  court  (Hastings  v.  Ames,  32  U.  S. 
App.  485;  G8  Fed.  Rep.  720.)  Where  the  only  question 
arising  in  tlie  circuit  court  under  a  treaty  was  as 
to  whether  the  petitioner  was  seeking  an  asylum  in 
the  "United  States,  and  no  question  as  to  the  con- 
struction or  validity  of  the  treaty  was  involved,  an 
appeal  directly  to  'the  supreme  court  was  not  permis- 
sible (In  re  NeAvraan.  79  Fed.  Rep.  615).  When  no 
construction  or  application  of  the  constitution  was 
either  expressed  or  asked  in  the  circuit  court,  a  cast 
cannot  be  carried  directly  to  the  supreme  court  of 
the  United  States  from  the  circuit  coui't  (Cornell  v. 
Green,  103  U.  S.  75).  In  a  case  before  the  supreme 
court  on  the  ground  that  a  constitutional  question 
is  involved,  it  has  jurisdiction  of  the  entire  case  and 
of  all  questions  involved  in  it  (Scott  v.  Donald,  165 
U.  S.  58;  Cliappell  v.  United  States,  159  U.  S.  698; 
IJornor  v.  United  States.  143  U.  S.  570;  Holder  v. 
Aultman,  Miller  &  Co.,  109  U.  S.  81).  The  supreme 
court  does  not  gain  jurisdiction  because  the  circuit 
court  directed  the  jury  to  find  for  defendant,  and  be- 
cause it  is  claiuK'd  plaintiff  is  thereby  deprived  of  the 
right  of  trial  by  jury.    (The  Ti'eat  Mfg.  Co.  v.  Stand- 


.733  SUPREME   COURT— JURISDICTION.  §  207 

ard  Steel  &  Iroii  Co.,  157  U.  S.  074).  An  appeal  lies 
directly  to  the  Supreme  Court  from  the  final  decision 
of  a  circuit  court  upon  habeas  corpus  in  case  of  any 
person  alleged  to  be  restrained  of  his  liberty  in  viola- 
tion of  the  Constitution  of  the  United  States  (Mc- 
Kane  v.  Durston,  153  U.  S.  G84).  Where  the  construc- 
tion of  a  treaty  between  the  United  States  and  Mex- 
ico is  drawn  in  question  in  a  final  order  of  the  district 
court  discharging  persons  from  custody  in  extradition 
proceedings,  an  appeal  may  be  taliexi  dii'ectly  to  the  su- 
preme court.  (Omelas  v.  Ruiz.  161  U.  S.  502.)  Where 
a  case  involves  the  constitutionality  of  a  law  of  the 
United  States,  it  is  within  the  appellate  jurisdiction 
of  the  supreme  court.  (Horner  v.  United  States,  143 
U.  S.  570.)  The  constitutional  question  need  not 
have  been  upheld  or  denied  in  the  lower  court  in 
order  to  give  the  supreme  court  jurisdiction.  (Holder 
V.  Aultman,  Miller  &  Co.,  169  U.  S.  81.)  The  fact  that 
the  claim  that  the  State  law  violates  the  Constitution 
of  the  United  States  is  not  well  founded  does  not  de- 
prive the  supreme  court  of  jurisdiction.  (Penn  Mu- 
tual Life  Ins.  Co.  v.  Austin,  168  U.  S.  685.)  The  claim 
that  a  city  ordinance  violates  the  Constitution  is  as 
good  for  jurisdiction  purposes  as  the  claim  that  a 
State  statute  so  violates  it.  (Penn  Mutual  Life  Ins. 
Co.  V.  City  of  Austin.  (108  U.  S.  685.)  The  jurisdic- 
tion of  the  court  of  appeals  attaches  upon  the  filing 
of  the  writ  of  error  in  the  office  of  the  clerli  of  the 
circuit,  and  is  not  defeated  by  irregularity  in  the 
transcript  or  in  its  certification.  (Burnham  v.  North 
Chicago  St.  Ry.  Co.,  87  Fed.  Rep.  108.)  An  appeal 
and  supersedeas  do  not  oust  the  jurisdiction  of  the 
lower  court  or  preclude  collateral  or  independent  pro- 
ceedings. (Fidelity  Trust  &  Safety  Vault  Co.  v.  Mo- 
bile St.  Ry.  Co.,  54  Fed.  Rep.  20.)  The  circuit  court  of 
appeals  has  no  jurisdiction  to  review  a  judgment  ren- 
dered before  the  act  creating  that  court  was  passed, 
Fed.  Pkoc.  -  62. 


§  207a  SUPREME   COURT— JURISDICTION.  734 

where  the  amount  claimed  was  too  small  to  give  juris- 
diction to  the  supreme  court.  (United  States  v.  Na- 
tional Exch.  Bank,  9  U.  S.  145;  53  Fed.  Rep.  9.) 
In  an  admiralty  case  the  decree  of  a  circuit  court 
on  appeal  was  renewable  in  the  circuit  courts  of  ap- 
peals, where  the  appeal  to  the  circuit  court  was  talcen 
prior  to  July  1,  1S91.  (Tlie  Mattauo,  8  U.  S.  App.  Ill; 
52  Fed.  Rep.  876.) 

§  207a.  Review  by  supreme  court  of  decisions 
of  circuit  court  of  appeals. — The  circuit  courts  of 
appeals  established  by  this  act  shall  exercise  appel- 
late jurisdiction  to  review,  by  ap)peal  or  by  writ  of 
error,  final  decisions  in  the  district  court,  and  the 
existing  circuit  courts  in  all  cases  other  than  those 
provided  for  in  the  preceding  section  of  this  act, 
unless  otherwise  provided  by  law,  and  the  Judg- 
ments or  decrees  of  the  circuit  courts  of  appeals 
shall  be  final  in  all  cases  in  which  the  jurisdiction 
is  dependent  entirely  upon  the  opposite  parties  to 
the  suit  or  controversy  being  aliens  and  citizens  of 
the  United  States,  or  citizens  of  different  States; 
also  in  all  cases  arising  under  the  patent  laws,  un- 
der the  revenue  laws,  and  under  the  criminal  laws, 
and  in  culniiralty  cases,  excepting  that  in  every  such 
subject  within  its  appellate  jurisdiction  the  circuit 
court  of  appeals  at  any  time  may  certify  to  the  su- 
preme court  of  the  United  States  any  questions  or 
propositions  of  law  concerning  which  it  desires  the 
instruction  of  that  court  for  its  proper  decision. 
And  thereupon  the  supreme  court  may  either  give 
its  instruction  on  the  questions  and  propositions 
certified  to  it,  which  shall  be  binding  upon  the  cir- 
cuit court  of  appeals  in  such  case,  or  it  may  require 


735  SUPREME    COURT— JUKISDICTION.  §  207a 

that  the  wtiole  record  aud  cause  may  be  sent  up 
to  it  for  its  consideration,  and  thereupon  shall  de- 
cide the  whole  matter  in  controversy  in  the  same 
manner  as  if  it  had  been  brought  there  for  review 
by  writ  of  error  or  appeal.  And  excepting  also 
that  in  any  such  case  as  is  hereinbefore  made  final 
in  the  circuit  court  of  appeals,  it  shall  be  com- 
petent for  the  supreme  court  to  require,  by  cer- 
tiorari or  otherwise,  any  such  case  to  be  certified 
to  the  supreme  court  for  its  review  and  determina- 
tion with  the  same  power  and  authority  in  the  case 
as  if  it  had  been  carried  by  appeal  or  writ  of  error 
to  the  supreme  court.  In  all  cases  not  hereinbe- 
fore, in  this  section,  made  final,  there  shall  be  of 
right  an  appeal  or  writ  or  error  or  review  of  the 
case  by  the  supreme  court  of  the  United  States, 
where  the  matter  in  controversy  shall  exceed  one 
thousand  dollars,  besides  costs.  But  no  such  ap- 
peal shall  be  taken  or  writ  of  error  sued  out  unless 
within  one  year  after  the  entry  of  the  order.  Judg- 
ment, or  decree  sought  to  be  reviewed.  (26  U.  S. 
Stats.  828,  sec.  6.) 

Judgments  final  in  circuit  court  of  appeals. — 
Where  a  decree  of  the  circuit  court  of  appeals 
is  final  in  the  main  suit,  decrees  in  accessory  and 
subordinate  proceedings  are  also  final.  (Gregory 
V.  Van  Ee,  160  U.  S.  643;  Rouse  v.  Letcher.  156  U.  S. 
47.)  Where  one  judge  of  the  circuit  court  of  appeals 
is  disqualified  and  the  other  two  are  divided  in  opin- 
ion, and  the  judgment  of  the  circuit  court  of  appeals 
is  not  "final"  it  is  not  necessary  for  that  court  to 
order  a  reargument  before  a  full  bench  nor  proper 
to  certify  questions  to  the  supreme  court  for  instruc- 
tions.    (Texas  &  Pac.  R.  Co.  v.  Gentry,  13  U.  S.  App. 


§  207a  SUPREME   COURT— JURISDICTION.  736 

531;  57  Fed.  Rep.  422.)  In  cases  in  which  the  juris- 
diction of  the  circuit  court  of  appeals  is  not  made 
final  there  is  a  right  of  appeal  or  writ  of  error  by  su- 
preme court  where  the  matter  in  controversy  exceeds 
$1,000,  besides  costs.  (Northern  Pac.  Ry.  Co.  v. 
Amato,  144  U.  S.  465.) 

(1).  When  diverse  citizenship  is  only  ground.— 
When  diverse  citizenship  is  tlie  only  ground  of  juris- 
diction the  judgment  of  the  circuit  court  of  appeals  is 
final.  (Press. Pub. Co. V. Monroe. IGl  U.S.  105 .American 
Construction  Co.  v.  Jacksonville  T.  &  K.  W.  Ry.  Co., 
148  U.  S.  372;  Benjamin  v.  City  of  New  Orleans,  1G9 
U.  S.  l(Jl;  Rouse  v.  Letcher,  15G  U.  S.  47;  Colorado 
Cent.  Cons.  Co.  v.  Turck,  150  U.  S.  138;  Roscoe  v. 
Hornsby,  161  U.  S.  588.)  And  this  is  so  even  though 
defendant  invokes  the  Federal  Constitution  and  laws. 
(Press.  Pub.  Co.  v.  Monroe,  li54  U.  S.  105.)  Where 
a  court  had  jurisdiction  of  a  suit  only  upon  the 
ground  of  diverse  citizenship,  and  the  court's  juris- 
diction over  an  ancillary  suit  depended  only  upon 
its  jurisdiction  over  the  original  suit,  the  decree  of 
the  circuil  court  of  appeals  is  final.  (Carey  v.  Hous- 
ton &  Tex.  Cent.  Ry.  Co.,  101  U.  S.  115;  Rouse  v. 
Letcher.  150  U.  S.  47.)  If  the  circuit  court  of  appeals 
had  jurisdiction  of  the  cause  not  alone  on  the  ground 
of  diverse  citizensliip,  but  on  the  further  ground  that 
a  Federal  question  was  involved,  the  judgment  of  tlie 
circuit  court  of  appeals  was  not  final.  (Northern  Pac. 
Ry.  Co.  V.  Amato,  144  U.  S.  405;  Union  Pac.  Ry.  Co. 
V.  Harris,  158  U.  S.  320.)  But  if  the  jurisdiction  of 
the  circuit  court  of  appeals  was  originally  invoked 
upon  the  sole  ground  of  diverse  citizenship,  its  judg- 
ment is  final,  even  if  another  gi-ouud  was  developed 
in  the  course  of  the  proceeding.  (Charles  F.  .Jones, 
104  U.  fcs.  O'Jl;  Borguieyer  v.  Idler,  150  U.  S.  408.) 


737  SUl'REME   COURT— JURISDICTION.  §  207a 

(2).  Cases  arising  under  revenue  laws. — The  judg- 
ments of  the  cii'cuit  court  of  appeals  are  tiual  in  cases 
arising  under  tlie  revenue  laws.  (Hubbard  v.  Soby, 
14G  U.  S.  56.)  A  judgment  of  the  circuit  court  on 
appeal  fr()m  a  decision  of  the  board  of  general  ap- 
praisers is  one  arising  under  the  revenue  laws. 
(United  States  v.  Hopewell,  5  U.  S.  App.  137;  51  Fed. 
Eep.  798.) 

(3).  Cases  arising  under  patent  laws. — A  suit  by 
the  United  States  to  cancel  a  patent  for  an  invention 
is  not  a  case  arising  under  the  imtent  laws,  and  such 
a  suit  is  not  final  in  the  circuit  court  of  appeals. 
(United  States  v.  American  Bell  Tel.  Co.,  159  U.  S. 
548.) 

(4).  Cases  arising  under  criminal  laws. — A  writ 
of  scire  facias  upon  a  forfeited  recognizance  to  se- 
cure the  appearance  of  a  person  to  answer  to  a  charge 
of  embezzlement  is  a  case  arising  under  criminal 
laws.     (Hunt  v.  United  States,  1G6  U.  S.  424.) 

Certification  of  questions  to  supreme  court  by  cir- 
cuit court  of  appeals. — The  circuit  court  of  appeals 
will  not  certify  the  questions  in  a  case  to  the  supreme 
court,  except  before  it  decides  them  and  upon  its  own 
motion.  (Andrews  v.  National  Foundry  &  P.  Co.,  46 
U.  S.  App.  619;  77  Fed.  Rep.  774;  Lornville  N.  A.  &  C. 
Ry.  Co.  V.  Pope,  46  U.  S.  App.  25;  74  Fed.  Rep.  1.)  An 
application  to  certify  certain  questions  to  the  su- 
preme court  for  decision  will  be  denied  where  the 
case  presents  no  peculiarities  rendering  such  action 
appropriate.  (The  Horace  B.  Parke,  33  U.  S.  App. 
503;  74  Fed.  Rep.  640;  Fabre  v.  Cunard  Steamship 
Co.,  11  U.  S.  App.  616;  59  Fed.  Rep.  500.)  A  circuit 
court  of  appeals  will  not  withhold  a  decision  of  other 
questions  presented  for  review  in  a  case  because  on 
one  out  of  many  it  desires  the  opinion  of  the  supreme 


g  207a  SUi'HEME    COURT— JUKlSI)lCTIO>J.  738 

court.  (Sigafus  v.  Torter,  5(3  U.  S.  App.  62;  84  Fed. 
Rt'p.  430.)  Certification  canuot  be  granted  where  the 
mixed  issues  of  law  and  fact  could  be  reviewed  sat- 
isfactorily only  upon  examination  of  the  entire  rec- 
ord. (Fabre  v.  Cuiiard  Steamship  Co.,  11  U.  S.  App. 
616;  59  Fed.  Rep.  5(JU;  Warner  v.  City  of  New  Or- 
leans, 167  U.  S.  407;  Graver  v.  Faurot,  162  U.  S.  435; 
Cross  V.  Evans.  107  U.  S.  00.)  In  order  to  involve  the 
exercise  of  the  jurisdiction  in  the  supreme  court  in 
the  instruction  of  the  circuit  court  of  appeals,  the 
questions  or  propositions  of  the  law  the  proper  deci- 
sions of  which  instruction  is  asked,  must  be  clearly 
and  distinctly  certified,  and  the  certificate  must  show 
that  Instruction  is  desired.  (Columbus  Watch  Co.  v. 
Kobi)ins.  148  U.  S.  200;  United  States  v.  Union  Pacific 
Ry.  Co.,  108  U.  S.  505;  McMenry  v.  Alford,  168  U.  S. 
651;  Cross  v.  Evans.  167  U.  S.  00.)  The  assertion  of 
a  difference  of  decision  between  two  circuit  courts 
of  appeals  upon  the  same  facts,  and  of  a  wish  that 
it  mi.nht  be  determined  by  the  supreme  court  is  not 
equivalent  to  the  'expression  of  a  desire  for  instruc- 
tion as  to  the  proper  decision  of  a  specific  question  or 
questions  requiring  determination  in  the  proper  dispo- 
sition of  the  case.  (O)lumbus  Watch  Co.  v.  Robbing, 
148  U.  S.  206.)  A  certificate  of  propositions  of  law 
is  irregular  where  a  quorum  of  the  circuit  court  of 
appeals  which  desires  instruction  does  not  sit  in  the 
case.  (Cincinnati,  H.  &  D.  R.  Co.  v.  McKeen,  149 
U.  S.  25!).)  The  certificate  should  contain  a  proper 
statement  of  the  facts  on  wliicli  the  questions  or  prop- 
ositions of  law  arise.  (Cincinnati,  H.  &  D.  R.  Co.  v. 
McKeen.  140  U.  S.  259.)  The  whole  record  should 
not  be  transmitted  to  the  Supreme  Court.  (Cincin- 
nati, II.  &  D.  R.  Co.  V.  McKeen.  149  U.  S.  259;  Graver 
V.  Faurot,  102  U.  S.  435.)  Questions  certified  by  the 
circuit  court  of  appeals  will  not.be  considered  when 
other  separate  and  distinct  propositions  of  law  not 


731)  SUPREME    COURT— JURISDICTION.  §  207a 

expressly  referred  to  in  the  certificate  are  essential 
to  be  passed  upon  in  considering  the  general  ques- 
tions certified.  (Cross  v.  Evan's,  167  U.  S.  60;  United 
States  V.  Union  Pac.  Ry.  Co.,  108  U.  S.  505.)  For  a 
case  which  was  of  a  nature  to  be  certified,  see  Na- 
tional Ace.  Soc.  V.  Spiro.  37  U.  S.  App.  639;  71  Fed. 
Rep.  897.)  Section  6  of  the  act  of  Congress  of  March 
3,  1891,  establishing  the  circuit  court  of  appeals, 
making  its  decision  final  in  certain  cases,  but  pro- 
viding tliat  the  supreme  court  may  require  any  such 
case  to  be  certified  to  it  for  instructions,  does  not  re- 
quire the  appellate  court  to  certify  any  question  for 
review  by  the  supreme  court,  which  identical  ques- 
tion had  been  already  decided  by  the  supreme  court. 
(Lau  Ow  Bew  v.  United  States,  7  U.  S.  App.  1;  47 
Fed.  Rep.  641.) 

Certiorari  to  compel  circuit  court  of  appeals  to 
certify  cases. — The  jurisdiction  of  the  supreme  court 
to  require,  by  certiorari  or  otherwise,  a  case  to 
be  certified  from  the  circuit  court  of  appeals  to 
the  supreme  court  for  its  review  and  determina- 
tion, should  be  exercised  only  in  cases  of  grav- 
ity and  importance,  or  in  order  to  secure  uni- 
formity of  decision.  (American  Const.  Co.  v.  Jaciv- 
sonville,  Tampa  &  Key  West.  148  U.  S.  372;  Forsyth 
V.  Hammond,  166  U.  S.  506;  United  States  v.  Three 
Friends,  166  U.  S.  1;  In  re  John  Woods,  143  U.  S.  202; 
Lau  Ow  Bew,  144  U.  S.  47;  Smith  v.  Vulcan  Iron 
Worlis,  165  U.  S.  518.)  The  power  of  the  supreme 
court  to  compel  the  certification  of  a  case  to  it  by  the 
circuit  court  of  appeals  is  not  affected  by  the  condi- 
tion of  the  case  as  it  exists  in  the  latter  court,  but 
may  be  exercised  before  or  after  any  decision  by  that 
court,  and  irrespective  of  any  ruling  or  determination 
therein.  (Forsyth  v.  Hammond,  166  U.  S.  506.) 
Certiorari  is  the  proper  remedy  to  review  a  decision 
of  the  circuit  court  of  appeals  dismissing,  for  want 


§  207a  SUPKEMK    COURT— JUKI SDICTION.  740 

of  juvisdiction,  a  case  within  tlie  class  of  cases  in 
which  the  juda-ment  is  made  final.  (Kingman  &  Co, 
V.  Western  Mlg.  Co.,  170  U.  S.  675;  American  Const. 
Co.  V.  Jaclisonville,  T.  &  K.  W.  Ky.  Co.,  148  U.  S. 
372.)  The  effect  of  a  certiorari,  when  awarded  by  the 
supreme  court  in  a  case  decided  by  the  circuit  court 
of  appeals  is  to  suspend  any  action  that  might  be 
talceu  by  that  court,  or  by  the  trial  court  in  obedi- 
ence to  its  mandate;  but  it  does  not  restore  jurisdic- 
tion to  the  trial  court,  nor  give  such  court  authority 
to  set  aside  orders  legally  and  properly  made  in  obe- 
dience to  the  mandate  of  the  circuit  court  of  appeals 
before  the  writ  of  certioi-ari  was  awarded.  (Louis- 
ville, N.  A.  &  C.  Ky.  Co.  v.  Louisville  Trust  Co.,  78 
Fed.  Rep.  G59.)  The  judgment  of  the  circuit  court  of 
appeals  need  not  be  a  final  judgment  in  order  to  be 
reviewed  by  certiorari;  it  is  within  the  discretion  of 
the  supreme  court  to  determine  at  what  stage  of  the 
proceedings  the  case  should  be  required  to  be  sent 
up  for  review.  (American  Const.  Co.  v.  Jacksonville, 
T.  &  K.  W.  Ry.  ,Co.,  148  U.  S.  372.)  But  certiorari 
should  not  issue  to  review  an  interlocutory  order, 
unless  it  is  necessary  to  prevent  extraordinary  incon- 
venience in  the  conduct  of  the  cause.  (American 
Const.  Co.  V.  Jacksonville  etc.  Ry.  Co.,  14S  U.  S.  372.) 
The  exclusion  of  a  Chinese  merchant  under  the  Chi- 
nese exclusion  act,  notwithstanding  satisfactory  evi- 
dence of  tiis  status  as  a  merchant  here,  presents  a 
question  of  such  impoi'tance  as  will  justify  the  su- 
preme court  in  requiring  the  circuit  court  of  appeals 
to  certify  the  case  to  it  for  review.  (Lau  Ow  Bew, 
141  U.  S.  583.)  If  the  case  is  one  from  which  an  ap- 
peal will  lie  from  the  circuit  court  of  appeals  to  the 
supreme  court,  certiorari  will  not  issue  to  review  the 
judgment  of  the  former  court.  (Re  Tampa  Sub- 
urban Ry.  Co.,  1G8  U.  S.  5S3.)  The  whole  case  is  open 
for  examination   when  the  supreme   court  issues  a 


741  SUPREME    COURT— JUKISDICTION,  §  207a 

writ  of  cortiorari  to  bring  up  the  whole  record.  (Pan- 
ama Ry.  Co.  V.  Napier  Shipping  Co.,  16G  U.  S.  280.) 
The  fact  that  the  mandate  of  the  circuit  court  of  ap- 
peals has  gone  down  does  not  preclude  a  writ  of  cer- 
tiorari from  the  supreme  court  to  review  the  decision 
of  a  circuit  court  of  appeals.  (The  Conqueror,  166 
U.  S.  110.)  Certiorari  will  issue  to  review  judgments 
in  contempt  proceedings  rendered  in  excess  of  ju- 
risdiction if  there  is  no  other  adequate  I'emedy.  (Ex 
parte  Chetwood,  165  U.  S.  443.)  An  application  for 
a  certiorari  to  review  a  decree  of  the  circuit  court, 
entered  after  the  adjournment  of  the  supreme  court 
for  the  term,  is  made  with  reasonable  promptness  if, 
during  the  next  terai  of  the  court  and  within  a  year 
after  the  original  decree.  (The  Conqueror,  166  U.  S. 
110.) 

Appeals  from  circuit  court  of  appeals  to  supreme 
court.— The  judgment  of  the  circuit  court  of  appeals 
is  not  final  where  the  jurisdiction  of  the  circuit  court 
did  not  depend  upon  diverse  citizenship  of  parties,  but 
upon  the  fact  that  the  suit  arose  under  a  law  of  the 
Uniteil  States.  (Northern  Pac.  Ey.  Co.  v.  Amato,  144 
U.  S.  465;  Union  Pacific  Ry.  Co.  v.  Harris,  158  U.  S. 
326.)  A  writ  of  error  from  the  supreme  coart  does 
not  lie  to  review  a  judgment  of  the  circuit  court  of 
appeals  which  is  not  a  final  judgment,  by  virtue  of 
the  last  clause  of  section  6,  act  1891,  creating  circuit 
courts  of  appeals.  (MacLeod  v.  Graven,  47  U.  S.  App. 
673;  79  Fed.  Rep.  84;  Lutcher  v.  United  States,  157 
U.  S.  427.)  The  mandate  of  the  circuit  court  of  ap- 
peals which  has  gone  down  need  not  be  recalled  in 
order  to  appeal  to  the  supreme  court  in  cases  not 
final  in  the  circuit  coiirt  of  appeals.  (Ritter  v.  Mu- 
tual Life  Ins.  Co.,  39  U.  S.  App.  189;  72  Fed.  Rep. 
567.)  An  appeal  will  lie  to  the  supreme  court  in  cases 
not  final  in  the  circuit  court  of  appeals,  where  the 
matter  in  controversy  exceeds  $1,000,  besides  costs. 


g  208  SUPKEME    COURT— JUKISDICTIOX.  742 

(Northern  Tac.  Ry.  Co.  v.  Amato,  144  U.  S.  465;  U.  S. 
V.  Wanamaker,  147  U.  S.  149.)  The  matter  in  contro- 
versy must  have  actual  value  and  cannot  be  supplied 
on  speculation.  (Huntington  v.  Saunders,  163  U.  S. 
319.)  The  stipulation  of  the  parties  as  to  the  amount 
in  controversy  is  not  controlling,  but  may  be  taken 
into  consideration.  (U.  S.  v.  Trans-Missouri  Freight 
Assn.,  166  U.  S.  290.)  If  the  decree  fail  to  specify  the 
sum  for  which  it  is  given,  it  is  final.  (Texas  &  Pac. 
Ey.  Co.  V.  Gentry,  163  U.  S.  353.)  An  appeal  from  a 
decree  of  a  circuit  court  which  affirms  its  own  prior 
decree  in  obedience  to  a  mandate  from  the  circuit 
court  of  appeals,  is  not  an  appeal  from  the  latter 
court,  but  from  the  circuit  court,  of  which  the  su- 
preme court  has  no  jurisdiction.  (Webster  v.  Daly, 
163  U.  S.  155.) 

Time  for  appeal.— A  rule  limiting  the  time  for  an 
appeal  is  applicable  to  a  case  already  decided.  (He 
Philip  Hien,  166  U.  S.  432.)  Where  a  motion  for  a  re- 
hearing is  made  -in  season  and  entertained  by  the 
court  the  decree  does  not  take  final  effect  for  the 
purposes  of  an  appeal,  until  the  motion  is  disposed  of. 
(Voorhees  v.  Noye  Mfg.  Co.,  151  U.  S.  135;  Aspen 
Min.  &  Sm.  Co.  v.  Billings,  150  U.  S.  31.) 

§  208.  Appeals  from  Indian  Territory  direct  to 
supreme  court. — Appeals  shall  be  allowed  from  the 
I'liiU'd  .States  courts  in  the  Indian  Territory  direct 
to  the  supreme  court  of  the  United  States  to  either 
party  in  all  citizenship  cases,  and  in  all  cases  be- 
tween either  of  the  Five  Civilized  Tribes  and  the 
United  States,  involving  the  constitutionality  or 
validity  of  any  legislation  affecting  citizenship,  or 
the  allotment  of  lands,  in  the  Indian  Territory,  un- 
der the  rules  and  regulations  governing  appeals  to 


743  SUPREME    COURT— JURISDICTION.  §  209 

said  court  in  other  cases;  provided,  that  appeals  in 
eases  decided  prior  to  this  act  must  be  perfected  in 
one  hundred  and  twenty  days  from  its  passage; 
and,  in  cases  decided  subsequent  thereto,  within 
sixty  days  from  final  judgment;  but  in  no  such  case 
shall  the  work  of  the  Commission  to  the  Five  Civ- 
ilized Tribes  be  enjoined  or  suspended  by  any  pro- 
ceeding in,'  or  order  of,  any  court,  or  of  any 
judge,  until  after  final  judgment  in  the  supreme 
court  of  the  United  States.  In  case  of  appeals,  as 
aforesaid,  it  shall  be  the  duty  of  the  supreme  court 
to  advance  such  cases  on  the  docket  and  dispose  of 
the  same  as  early  as  possible.  (30  U.  S.  Stats. 
591.) 

§  209.  Appeals  in  prize  causes.— An  appeal 
shall  be  allowed  to  the  supreme  court  from  all  final 
decrees  of  any  district  court  in  prize  causes,  where 
the  matter  in  dispute,  exclusive  of  costs,  exceeds 
the  sum  or  value  of  two  thousand  dollars;  and  shall 
be  allowed,  without  reference  to  the  value  of  the 
matter  in  dispute,  on  the  certificate  of  the  district 
judge  that  tlie  adjudication  involves  a  question  of 
general  importance.  And  the  supreme  court  shall 
receive,  hear,  and  determine  such  appeals,  and 
shall  always  be  open  for  the  entry  thereof.  (Eev. 
Stats,  sec.  695.)      [See  sec.  1009.] 

Appeals  in  prize  cases. — A  new^  claim  cannot  be 
introduced  in  the  supreme  court,  but  may  be  filed  in 
the  circuit  court  when  the  cause  is  remanded.  (The 
Societe,  9  Cranch,  209;  The  Harrison,  1  Wheat.  298.) 
Wliere  the  facts  did  not  show  it  to  be  a  prize  case, 
but  a  case  of  forfeiture,  the  case  will  be  remanded. 


§§  210-210a  SUPREME   COURT— JUniSDICUON.  744 

(U.  S.  V.  Weed,  5  Wall.  62;  The  Watchful,  6  Wall.  91.) 
If  the  district  court  in  a  prize  case  wrongfully  al- 
loAvs  or  denies  the  order  for  further  proof,  and  ob- 
jection is  taken,  the  supreme  court  can  administer 
the  proper  relief  (The  PizaiTo,  2  Wheat.  227);  so  if  a 
claim  is  dismissed,  claimant  may  appeal  (Withen- 
buiy  V.  U.  S.,  5  Wall.  819);  but  a  party  who  does  not 
appeal  can  raise  no  objection,  although  another  party 
appeals.  (The  Amiable  Nancy,  3  Wheat.  546.) 
Where  the  objection  that  the  libel  is  not  brought  in 
the  name  of  the  United  States  is  not  raised  by  the 
pleadings,  it  will  not  be  entertained.  (Jecker  v. 
Montgomery,  18  How.  111.)  A  case  carried  into  a 
circuit  court  before  the  act  of  1863  is  properly  here 
on  appeal  from  the  circuit  court.  (The  Admiral,  3 
Wall.  603.)  Appeal  lies  from  a  final  decree  in  a  prize 
cause,  and  the  whole  matter  in  controvei'sy  can  be 
disposed  of,  leaving  nothing  to  be  litigated  between 
the  parties.  (Withenbury  v.  U.  S.,  5  Wall.  819.) 
Where  there  was  no  order,  decree,  or  judgment,  the 
appeal  will  be  dismissed.     (The  Alicia,  7  Wall.  571.) 

§  210.  Appeals  in  prize  causes  remaining  in 
cirouit  courts. — An  appeal  Sliall  be  allowed  to  the 
supreme  court  from  all  final  decrees  of  any  circuit 
court  in  prize  causes  depending  therein  oil  the  thir- 
tieth day  of  June,  eighteen  hundred  and  sixty-four, 
m  the  same  manner  and  subject  to  the  same  con- 
ditions as  appeals  in  prize  causes  for  the  district 
courts.     (Eev.  Stats,  sec.  69(5.) 

^  210  a.     Appellate   jurisdiction  in  bankruptcy 

cases.— (a)  The  supreme  court  of  the  United 
States,  the  circuit  courts  of  appeals  of  the  United 
Slates,  and  llie  supreme  courts  of  the  Territories, 
in  vacatiou  in  cliambcrs  and  during  their  respective 


745  SUPREME   COURT— JURISDICTION.  §  310b 

tei'ms,  as  now  or  as  they  may  be  hereafter  held, 
are  hereby  invested  with  appellate  jurisdiction  of 
controversies  arising  in  bankruptcy  proceedings 
from  the  courts  of  bankruptcy  from  which  they 
have  appellate  jurisdiction  in  other  cases.  The 
supreme  court  of  the  United  States  shall  exercise  a 
like  jurisdiction  from  courts  of  bankruptcy  not 
within  any  organized  circuit  of  the  United  States, 
and  from  the  supreme  court  of  the  District  of 
Columbia. 

(b)  The  several  circuit  courts  of  appeal  shall 
have  jurisdiction  in  equity,  either  interlocutory  or 
final,  to  superintend  and  revise  in  matter  of  law 
the  proceedings  of  the  several  inferior  courts  of 
bankruptcy  within  their  jurisdiction.  Such  power 
shall  be  exercised  on  due  notice  and  petition  by 
any  party  aggrieved.     (30  U.  S.  Stats.  553,  sec.  34.) 

§  210  b.  Writs  of  error  and  appeals  in  bank- 
ruptcy matters. — (a)  That  appeals,  as  in  equity 
cases,  may  be  taken  in  bankruptcy  proceedings 
from  the  courts  of  bankruptcy  to  the  circuit  court 
of  appeals  of  the  United  States,  and  to  the  supreme 
court  of  the  Territories,  in  the  following  cases,  to 
wit  (1)  from  a  judgment  adjudging  or  refusing  to 
adjudge  the  defendant  a  bankrupt;  (2)  from  a 
judgment  granting  or  denying  a  discharge;  and  (3) 
from  a  judgment  allowing  or  rejecting  a  debt  or 
claim  of  five  hundred  dollars  or  over.  Such  appeal 
shall  be  taken  within  ten  days  after  the  judgment 
appealed   from   has   been  rendered,  and   may  be 

Fed.  Proc— 63. 


§211  SUPREME    COURT— JUKISDICTIOX  746 

heard  and  determined  by  the  appellate  court  in 
term  and  vacation,  as  the  case  may  be. 

(b)  From  any  final  decision  of  a  court  of  appeals, 
allowing  or  rejecting  a  claim  under  this  act,  an  ap- 
peal may  be  had  under  such  rules  and  within  such 
time  as  may  be  prescribed  by  the  supreme  court  of 
the  United  States,  in  the  following  cases  and  no 
other: 

1.  Where  the  amount  in  controversy  exceeds  the 
sum  of  two  thousand  dollars,  and  the  question  in- 
volved is  one  which  might  have  been  taken  on  ap- 
peal or  writ  of  error  from  the  highest  court  of  a 
State  to  the  supreme  court  of  the  United  States;  or 

2.  Where  some  justice  of  the  supreme  court  of 
the  United  States  shall  certify  that  in  his  opinion 
the  determination  of  the  question  or  questions  in- 
volved in  the  allowance  or  rejection  of  such  claim 
is  essential  to  a  uniform  construction  of  this  act 
througliout  the  United  States. 

(c)  Trustees  shall  not  be  required  to  give  bond 
when  they  take  appeals  or  sue  out  writs  of  error. 

(d)  Controversies  may  be  certified  to  the  su- 
preme court  of  the  United  States  from  other  courts 
of  the  United  States,  and  the  former  court  may 
exercise  jurisdiction  thereof  and  issue  writs  of  cer- 
tiorari pursuant  to  the  provisions  of  the  United 
States  laws  now  in  force  or  such  as  may  be  here- 
after enacted.     (30  U.  S.  Stats.  553,  sec.  25.) 

§  211.  Transcripts  on  appeal. — Upon  the  ap- 
peal of  any  cause  in  equity,  or  of  admiralty  and 


747  SUPREME    COURT— JUEISDICTION.  §  21 1 

maritime  jurisdiction,  or  of  prize  or  no  prize,  a 
transcript  of  the  record  as  directed  by  law  to  be 
made,  and  copies  of  the  proofs  and  of  such  entries 
and  papers  on  file  as  may  be  necessary  on  the  hear- 
ing of  the  appeal,  shall  be  transmitted  to  the  su- 
preme court;  provided,  that  either  the  court  below 
or  the  supreme  court  may  order  any  original  docu- 
ment or  other  evidence  to  be  sent  up,  in  addition 
to  the  copy  of  the  record,  or  in  lieu  of  a  copy  oi 
a  part  thereof.  And  on  such  appeal  no  new  evi- 
dence shall  be  received  in  the  supreme  court  except 
in  admiralty  and  prize  causes.  [See  sec.  750.] 
(Rev.  Stats,  sec.  698;  18  U.  S.  Stats.  316;  1  Sup. 
Eev.  Stats.  135.) 

Becords.— The  certificate  of  the  clerk  is  prima  facie 
evidence  that  the  record  is  complete  (The  Rio  Grande, 
19  Wall.  178);  and  his  certificate  to  a  deposition  con- 
tained in  the  record  that  it  was  filed  after  trial  of  the 
cause  is  of  equal  validity  as  if  forming  part  of  his 
original  certificate  (The  Samuel,  1  Wheat.  9);  but  his 
certificate  cannot  be  received  as  evidence  that  pa- 
pers were  used  in  the  court  below  and  have  been  lost. 
(The  Grapeshot.  9  Wall.  129;  7  Wall.  563.)  The  su- 
preme court  hears  the  cause  in  the  first  instance  up- 
on the  evidence  transmitted  (The  London  Packet,  2 
Wheat.  371);  and  if  the  proof  is  deficient,  the  cause 
may  be  continued  with  leave  to  produce  further 
proof.  (The  Samuel.  1  Wheat.  9.)  On  motions  to  dis- 
miss appeals  or  writs  of  error  it  is  only  necessary  to 
print  so  much  of  the  record  as  will  enable  the  court 
to  act  understandingly  without  reference  to  the  tran- 
script. (Carey  v.  Houston  &  Texas  Cent.  Ry.  Co., 
150  U.  S.  170.)     It  Is  the  duty  of  appellants  to  bring 


§  212  SUPREME    COURT— JUKISDICTION.  748 

into  the  supreme  court,  as  part  of  the  record,  excep- 
tions talien  by  them  to  the  master's  report.  (Belford 
V.  Scribner,  144  U.  S.  488.)  Where  the  only  errors  as- 
signed which  call  for  consideration  depend  upon  the 
terms  and  the  construction  of  a  contract  which  does 
not  appear  in  the  record,  the  judgment  will  be  affirm- 
ed. (Red  River  Cattle  Co.  v.  Alfred  Sully,  144  U.  S. 
209.) 

§  212.  Cases  where  question  of  jurisdiction 
only  reviewed,  without  reference  to  amount. — ■ 
That  in  all  cases  where  a  final  judgment  or  decree 
shall  be  rendered  in  a  circuit  court  of  the  United 
States  in  which  there  shall  have  been  a  question 
involving  the  jurisdiction  of  the  court,  the  party 
against  whom  the  judgment  or  decree  is  rendered 
shall  be  entitled  to  an  appeal  or  writ  of  error  to 
the  supreme  court  of  the  United  States  to  review 
such  judgment  or  decree  without  reference  to  the 
amount  of  the  sarhe;  but  in  cases  where  the  decree 
or  judgment  does  not  exceed  the  sum  of  five  thou- 
sand dollars,  the  supreme  court  shall  not  review 
any  question  raised  upon  the  record  except  such 
question  of  jurisdiction;  such  writ  of  error  or  ap- 
peal shall  be  taken  and  allowed  under  the  same 
provisions  of  law  as  apply  to  other  writs  of  error 
or  appeals,  except  as  provided  in  the  following  sec- 
tion. Sec.  2.  That  in  cases  of  judgments  or  de- 
crees mentioned  in  the  first  section  of  this  act,  and 
heretofore  rendered",  where  the  period  of  limitation 
for  taking  writs  of  error  or  appeals  in  other  cases 
has  not  expired,  appeals  or  writs  of  error  may  be 
8ued  out  at  any  time  within  one  year  after  the  pas- 
sage of  this  act.     (Approved  Feb.  25,  1889;  25 


749  SUrREME   COURT— JURISDICTION.  §  213 

U.  S.  stats.  693.)     (Mattingiy  v.  Northwestern  Va. 
K.  K  Co.,  158  U.  S.  53.) 

(Mattingiy  v.  Northwestern  Va.  R.  R.  Co.,  158  U.  S. 
53.) 

Note.— Was  the  above  act  repealed  by  implication 
by  s-ection  5  of  the  act  creating  the  circuit  court  of 
appeals,  ante,  sec.  175? 

§  213.     Judgment  or  decree  on  review. — The 

supreme  court  may  ajSirm,  modify,  or  reverse  any 
judgment,  decree,  or  order  of  a  circuit  court,  or 
district  court,  acting  as  a  circuit  court,  or  of  a  dis- 
trict court  in  prize  causes,  lawfully  brought  before 
it  for  review,  or  may  direct  such  judgment,  decree, 
or  order  to  be  rendered,  or  such  further  proceed- 
ings to  be  had  by  the  inferior  court  as  the  justice 
of  the  case  may  require.  The  supreme  court  shall 
not  issue  execution  in  a  cause  removed  before  it 
from  such  courts,  but  shall  send  a  special  mandate 
to  the  inferior  court  to  award  execution  thereon. 
(Rev.  Stats,  sec.  701.) 

Ee-^iew.— The  .iudgment  of  the  circuit  court  upon  a 
plea  to  the  jurisdiction  will  not  be  reviewed  upon  pe- 
tition for  mandamus.  (Ex  parte  Railway  Co.,  103 
U.  S.  794.)  The  action  of  the  circuit  court  in  refusing 
to  grant  an  appeal  in  a  habeas  corpus  case  in  favor 
of  a  prisoner,  under  judgment  of  a  State  court,  can- 
not be  revised  on  application  to  the  supreme  court  of 
the  United  States  for  such  a  writ.  (Re  Boardman, 
169  U.  S.  39.) 

On  affirmance.— The  circuit  court  has  no  power  to 
modify  a  decree  which  has  been  affirmed.     (Chaires 


§213  SUPREME    COURT— JURISDICTIOX,  750 

V.  U.  S.,  3  How.  611;  Southard  v.  Russell,  16  How. 
547.)  So  on  affirmance  of  a  decree  dismissing  the 
bill.  (Durant  v.  Essex  Co.,  101  U.  S.  555.)  Persons 
not  parties  to  a  decree  of  distribution,  who  appear 
after  decree  affirmed,  may  claim  their  share  therein. 
(Ex  parte  Howard,  9  Wall.  175.)  There  being  in  a 
case  separate  sentences  of  concurrent  imprisonment 
imder  each  of  two  counts  of  the  indictment,  the  su- 
preme court  on  affirmance  as  to  one,  and  reversing  as 
to  the  other,  remits  the  case  to  the  lower  court  for 
further  proceedings,  instead  of  ordering  a  new  trial. 
(Putnam  v.  United  States,  162  U.  S.  687.)  If  a  State 
court  proceeds  before  the  mandate  of  affirmance  is- 
sues from  the  supreme  court,  its  action,  though  not  to 
be  commended,  is  not  void.  (Re  Boardman,  169  U.  S. 
39.) 

On  reversal.— If  tlie  judgment  be  reversed  and 
judgment  for  defendant  be  entered,  the  circuit  court 
cannot  grant  a  new  trial  (Ex  parte  Dubuque  &  Pac. 
R.,  1  Wall.  69);  and  if  reversed  with  directions  to  en- 
ter judgment  for  plaintiff  in  error,  judgment  should 
be  enforced  with  costs.  (MeKnight  v.  Craig,  6 
Cranch,  183.)  On  a  special  finding  before  the  court 
\\ithout  a  jury,  the  circuit  court  on  reversal  may  pro- 
ceed to  try  other  issues.  (Ex  parte  French,  91  U.  S. 
423.)  If  no  supersedeas  has  been  obtained,  a  rever- 
sal will  not  vacate  a  sale  under  a  decree.  (South 
Fork  Canal  Co.  v.  Gordon,  2  Abb.  U.  S.  479;  Fed. 
Cas.  No.  13189.)  A  reversal  which  directs  restitution 
of  money  must  be  obeyed  as  far  as  practicable  by  the 
distributees.  (Ex  parte  Morris,  9  Wall.  605.)  Entry 
of  the  proper  judgment  below  will  be  directed  on  re 
versing  a  decision  in  a  case  heard  upon  an  agreed 
statement  of  facts  (Meyer  v.  Richards,  163  U.  S.  385), 
but  the  appellate  court  can  only  direct  such  judgment 
as  is  autliorized  by  the  facts  specially  found  by  the 
circuit  court.     (Pullman  Palace  Car  Co.  v.  Metropoli- 


751  SUPREME    COURT — JURISDICTION,  §  313 

tan  Street  Ry.  Co..  157  U.  S.  94.)  Questions  finally 
settled  by  the  supreme  court  cannot  be  reconsidered 
by  the  lower  court,  but  must  be  deemed  to  have  been 
finally  settled.  (Re  C.  &  A.  Potts  &  Co.,  166  U,  S. 
263.) 

Proceedings  after  mandate.— Where  the  mandate 
requires  only  the  execution  of  the  decree,  the  circuit 
court  is  bound  thereby,  although  the  jurisdiction  is 
not  alleged  in  the  pleadings  (Sliillem  v.  May,  6 
Cranch,  267):  but  where  the  mandate  is  uncertain 
and  ambiguous,  it  has  a  right  to  resort  to  the  opin- 
ion delivered  at  the  time  to  assist  in  expounding  it, 
(West  V,  Brashear,  14  Peters,  51.)  The  inferior  court 
is  bound  by  the  decree  of  the  supreme  court,  and 
must  caiTy  it  into  execution  according  to  the  man- 
date. (Sibbald  v.  United  States,  12  Peters,  488;  West 
V.  Brashear,  14  Peters,  51;  Gaines  v,  Rugg,  148  U.  S. 
228,)  When  the  direction  in  the  mandate  is  precise 
and  unambiguous,  it  is  the  duty  of  the  circuit  court 
to  carry  it  into  execution.  (West  v,  Brashear,  14 
Peters,  51,)  On  demurrer  overruled  by  the  supreme 
court,  the  party  will  not  be  permitted  to  file  other 
demurrei's  after  the  remand.  (Hitchcock  v.  Galves- 
ton, 3  Woods,  269;  Fed.  Gas,  No,  6533.)  The  allow- 
ance of  a  supplemental  answer  after  mandate  is  in 
the  discretion  of  the  court.  (Williams  v.  Gibbes,  20 
How.  535.)  So  the  claimant  in  collusion  may  amend 
his  answer  after  return  of  mandate.  (The  Pennsyl- 
vania, 12  Blatchf.  67;  Fed.  Cas.  No.  10951.)  A  party 
cannot  file  new  pleadings  if  the  rights  of  the  parties 
are  finally  determined.  (Stewart  v.  Salamon,  97  U, 
S,  361.)  The  mandate  in  case  of  a  vessel  released 
on  stipulation  in  the  district  court  operates  without 
any  appeal  to  the  supreme  court.  (The  Lady  Pike,  96 
U.  S.  461;  see  Ex  parte  Sawyer,  21  Wall.  235.)  At- 
tachment cannot  be  issued  for  refusal  to  obey  the 


§213a  SUPREME   COUKT—JUKISDICTION.  752 

Original  judgment  awarding  a  mandamus,  but  an 
alias  writ  will  be  issued.  (United  States  v.  Kendall, 
5  Cranch  C.  C.  385;  Fed.  Cas.  No.  15418.)  Costs  may 
be  taxed  after  receipt  of  mandate,  and  be  entered 
nunc  pro  tunc.  (Sizer  v.  Many,  16  How.  98.)  If  the 
State  Court,  after  judgment  in  the  supreme  court, 
proceeds  before  the  mandate  of  affirmance  issues 
from  the  supreme  court  its  action,  though  not  to  be 
commended,  is  not  void.  (Re  Boardman,  169  U.  S. 
39.)  In  ordinary  cases  a  new  trial  cannot  be  granted 
by  the  court  below  in  entering  the  judgment  of  the 
supreme  court.     (Smale  v.  Mitchell,  143  U.  S.  99.) 

Second  appeals. — An  appeal  from  a  decree  entered 
by  the  court  below  in  accordance  with  the  mandate 
of  the  appellate  court,  cannot  be  maintained.  (Aspen 
M.  &  S.  Co.  V.  Billings,  150  U.  S.  31.)  Whatever  has 
been  decided  on  one  appeal  or  writ  of  error  cannot  be 
re-examined  on  a  second  appeal  or  writ  of  error 
brought  in  the  same  suit.  (Thompson  v.  Maxwell 
Land  Grant  Co.,  168  U.  S.  451.)  One  who  does  not 
appeal  from  a  decree  is  not  entitled  on  an  appeal 
from  a  decree  of  affirmance  to  contest  a  provision  of 
the  original,  which  is  merely  affirmed  by  the  latter. 
(Harrison  v.  Perea,  168  U.  S.  311.) 

§  213a.  Remanding  causes. — AVhenever  on  ap- 
peal or  writ  ot  error,  or  otherwise,  a  case  coming 
directly  from  the  district  court  or  existing  circuit 
court  shall  be  reviewed  and  determined  in  the 
supreme  court,  the  cause  shall  be  remanded  to  the 
proper  district  or  circuit-  court  for  further  pro- 
ceedings, to  be  taken  in  pursuance  of  such  deter- 
mination. And  whenever  on  appeal  or  writ  of  er- 
ror or  otherwise,  a  case  coming  from  a  circuit  court 
of  appeals  shall  be  reviewed  and  determined  in  the 


753  6UPBEME   COURT— JUKISDICTION.  §  213  a 

supreme  court,  the  cause  shall  be  remanded  by  the 
supreme  court  to  the  proper  district  or  circuit 
court  for  further  proceedings  in  pursuance  of  such, 
determination.  Whenever  on  appeal  or  writ  of  er- 
ror or  otherwise,  a  case  coming  from  a  district  or 
circuit  court  shall  be  reviewed  and  determined  in 
the  circuit  coui-t  of  appeals  in  a  case  in  which  the 
decision  in  the  circuit  court  of  appeals  is  final,  such 
cause  shall  be  remanded  to  the  said  district  or  cir- 
cuit court  for  further  proceedings  to  be  there  taken 
in  pursuance  of  such  determination.  (36  U.  S. 
Stats.  839,  sec.  10.) 

Remanding  cause  by  appellate  court. — An  ap- 
pellate court  bas  no  pow-er  to  remand  except  for 
the  purpose  of  giving  effect  to  some  judgment  of 
its  own,  and  hence  it  cannot  remand  a  suit  in  equity 
merely  for  the  purpose  of  a  rehearing  of  a  cause  in 
the  court  below  in  view  of  new  matter  to  be  pro- 
duced by  the  defeated  party.  (Harden  v.  Campbell 
P.  P.  &  Mfg.  Co.,  33  U.  S.  App.  123;  67  Fed.  Rep. 
809.)  The  circuit  court  of  appeals  can  act  upon  the 
court  below  only  by  mandate.  (North  Bloomfield  G. 
M.  Co.  V.  United  States,  48  U.  S.  Ai^p.  755;  83  Fed. 
Rep.  2.)  When  on  the  coming  down  of  the'  mandate 
the  court  enters  a  judgment  against  the  sureties  on 
the  supersedeas  bond,  such  judgment  should  be  for 
the  amount  of  the  original  judgment  with  interest 
and  costs;  it  is  erroneous  to  compute  the  interest  to 
date  and  then  enter  judgment  for  the  full  amount. 
(Gordon  v.  Third  Nat.'  Banlv,  3  U.  S.  App.  554;  56 
Fed.  Rep.  790.)  If  the  appellate  court  commits  an 
error  in  failing  to  give  the  successful  party  costs,  it 
snould  be  corrected  by  motion  in  the  appellate  court 
before  the  mandate  issues.     (State    of    Califoraia,  7 


§  213  a  SUPREME   COURT — JURISDICTION.  754 

U.  S.  App.  652;  54  Fed.  Rep.  404.)  Except  in  a  very 
plain  case  restitution  of  money  paid  under  an  errone- 
ous decree  will  not  be  directed  by  tlie  appellate  court 
where  the  interests  of  the  parties  defendant  may 
be  diverse;  but  leave  wiU  be  reserved  in  the  mandate 
to  present  a  petition  for  restitution  to  the  Court  be- 
low. (Andrews  v.  Thum,  33  U.  S.  App.  393;  71  Fed. 
Rep.  763.)  The  circuit  court  will,  upon  writ  of  en'or, 
remand  a  case  which  has  been  brought  within  the 
jurisdiction  by  means  of  collusion,  where  the  proof 
is  clear;  when  the  proof  is  not  clear,  on  reversing  the 
judgment,  the  court  will  direct  the  trial  and  deter- 
mination of  that  question  at  the  circuit.  (Ashley  v. 
Board  of  Supervisors,  16  U.  S.  App.  656;  60  Fed.  Rep. 
55.)  A  judgment  which  has  been  affirmed  stands  in 
the  same  position  after  mandate  is  sent  down  that 
it  did  before  the  writ  of  error  was  allowed.  (Nelson 
V,  First  Nat.  Bank,  70  Fed.  ReiD.  526.)  A  court  en- 
gaged in  the  regular  trial  of  cases  on  a  day  not  a 
motion  day  is  not  bound  to  drop  all  business  and  im- 
mediately gi'ant  a  motion  for  judgment  in  accordance 
with  the  mandate  of  a  higher  court  on  reversal.  (Re 
Joseph  Hall,  167  U.  S.  38.)  Whatever  is  before  the 
appellate  court  and  is  disposed  of  by  virtue  of  the 
appeal  becomes  the  law  of  the  case,  and.  the  lower 
com-t  must  carry  it  into  execution  according  to  the 
mandate  witliout  power  to  modify,  reverse,  enlarge, 
or  suspend  it.  (Bissell  Carpet  Sweeper  Co.  v.  Goshen 
Sweeper  Co.,  43  U.  S.  App.  47;  72  Fed.  Rep.  545.) 

Rehearing  after  mandate. — After  a  federal  appel- 
late court  has  passed  upon  all  the  issues  before  it 
and  finally  disposed  of  the  case,  the  court  below  has 
no  power  to  subsequently  entertain  a  bill  of  review 
based  on  newly  discovered  evidence  unless  the  man- 
date gives  such  privilege.  (In  re  Gamewell  Fire 
Alarm  T.  Co.,  33  U.  S.  App.  452;  73  Fed.  Rep.  908.) 


755  SUPREME   COURT— JUKISDICTION.  §  213  a 

But  if  the  appeal  was  from  an  interlocutory  decree, 
a  rehearing  may  be  allowed,  after  mandate,  by  the 
trial  court.  (C.  &  A.  Potts  &  Co.  v.  Creagher,  71  Fed. 
Rep.  574.)  The  appellate  court  may  ordinarily  en- 
tertain an  original  petition  for  leave  to  file  in  the 
court  below  a  bill  of  review  or  supplemental  bill  in 
tne  natm-e  of  a  bill  of  review,  even  after  the  close 
of  the  term  at  which  the  judgment  was  entered. 
(In  re  GameweU  Fire  Alai-m  Tel.  Co.,  33  U.  S.  App. 
452;  73  Fed.  Rep.  908.)  It  is  too  late  to  question  the 
jurisdiction  of  the  circuit  court  after  a  return  of  a 
mandate  from  the  circuit  court  of  appeals.  (Bil- 
lings V.  Aspen  Min.  &  Smelting  Co.,  53  Fed.  Rep.  561.) 

Appeal  from  decree  on  mandate.— Where  the  judg- 
ment or  decree  upon  the  mandate  of  an  appellate 
court  determines  questions  not  covered  thereby,  it  is 
subject  to  review  by  appeal  or  writ  of  eiTor  in  the 
proper  appellate  court.  (Metcalf  v.  City  of  Water- 
town,  34  U.  S.  App.  107;  68  Fed.  Rep.  859;  Laidlaw 
V.  Oregon  Ry.  &  Nav.  Co.,  48  U.  S.  App.  430;  81  Fed. 
Rep.  876.)  In  such  case  the  second  writ  of  error 
brings  up  nothing  for  review  but  the  proceedings 
subsequent  to  the  mandate.  (Republican  Min.  Co.  v. 
Tyler  M.  Co.,  48  U.  S.  App.  213;  79  Fed.  Rep.  733.) 
Where  the  supreme  court  decides  that  the  circuit 
court  has  jurisdiction  of  a  cause,  and  remands  the 
same'  for  further  proceedings,  the  circuit  court  of 
appeals  cannot,  on  a  subsequent  appeal,  reopen  the 
question  of  jurisdiction.  (Nashua  &  L.  R.  Coi-p.  v. 
Boston  &  L.  R.  Corp.,  5  U.  S.  App.  97;  51  Fed.  Rep. 
929.)  An  appellate  court  should  not  ordinarily  en- 
tertain an  appeal  from  a  decree  entered  in  pursuance 
of  a  mandate  from  the  circuit  court  of  appeals  when 
no  errors  are  assigned  as  to  matters  arising  subse- 
quent to  the  mandate.     (Gregory  v.  Pike,  33  U.   S. 


§  214  SUPREME    COURT— JUKISDICTIOX.  756 

App.  700;  77  Fed.  Rep.  241;  Merrill  v.  National  Bank 
of  Jacksonville,  41  U.  S.  App.  645;  78  Fed.  Kep.  208.) 

§  214.  Writs  of  error  and  appeals  from  Terri- 
torial courts. — No  appeal  or  writ  of  error  shall 
hereafter  be  allowed  from  any  judgment  or  decree 
in  any  suit  at  law  or  in  equity  in  the  supreme  court 
of  the  District  of  Columbia,  or  in  the  supreme 
court  of  any  of  the  Territories  of  the  United  States, 
unless  the  matter  in  dispute  shall  exceed  the  sum 
of  five  thousand  dollars.  This  section  shall  not 
apply  to  any  case  wherein  is  involved  the  validity 
of  any  patent  or  copyright,  or  in  which  is  drawn  in 
question  the  validity  of  any  treaty  or  statute  of, 
or  an  authority  exercised  under,  the  United  States; 
but  in  all  such  cases  an  appeal  or  writ  of  error 
may  be  brought  without  regard  to  the  sum  or  value 
in  dispute.     (23  U.  S.  Stats.  355.) 

Appeal  from  supreme  court  of  territory,  in  gen- 
eral.— An  appeal  lies  to  the  supreme  coiu't  from  the 
judgments  or  decrees  of  the  supreme  courts  of  th6 
territories,  except  in  cases  where  the  judgments  of 
tihe  circuit  court  of  appeals  are  made  final.  (Shute 
V.  Keyser,  149  U.  S.  649.)  If  the  supreme  court  of  the 
territoi-y  correctly  reversed  the  decree  of  the  dis- 
trict court,  its  decree  will  be  affirmed.  (U.  S.  v.  Hart, 
6  Wall.  770.)  In  order  that  the  supreme  court  may 
take  jurisdiction  it  must  appear  on  the  record  that 
the  question  was  raised  and  decided  in  the  lower 
court.  (I^ownsdale  v.  Parrish,  21  How.  290.)  Where 
the  question  relates  merely  to  the  counting  of  the 
votes  for  the  removal  of  a  county  seat,  the  value  of 
the  interest  cannot  be  computed.  (Potts  v.  Chuma- 
sero,  92  U.  S.  358.)    A  case  in  equity  may  be  taken 


757  SUPKEME    COURT— JURISDICTION.  §  214 

up  by  ai.peal,  although  it  was  removed  into  the  su- 
preme court  of  the  territory  by  writ  of  error. 
(Brewster  v.  Wakefield,  22  How.  118.)  A  proceed- 
ing for  allotment  of  dower  in  a  law  action  cannot 
be  talven  by  appeal,  although  not  carried  on  accord- 
ing to  the  forms  of  the  common  law.  (Parish  v.  El- 
lis, 16  Peters,  451.)  A  mortgagor  may  appeal  alone 
from  a  decree  directing  a  foreclosure,  and  subsequent 
lien-holders  need  not  join.  (Brewster  v.  Walvcfiedd, 
22  How.  118.)  If  neither  party  had  any  interest  in  the 
property  in  dispute,  no  appeal  can  be  talien.  (Lowns- 
dale  V.  Parrish,  21  How.  290.)  On  an  appeal  from 
the  supreme  court  of  a  territory  the  supreme  court 
cannot  examine  the  evidence  as  to  its  weight  or  suf- 
ficiency, and  the  findings  of  fact  are  conclusive  upon 
the  supreme  court.  (Holloway  v.  Dunham,  170  U.  S. 
615:  Harrison  v.  Perea,  168  U.  S.  311;  San  Pedro  & 
Canon  Agua  Co.,  146  U.  S.  120.)  Where  there  are  no 
exceptions  to  rulings  on  the  admission  or  rejection  of 
evidence  the  supreme  court  is  limited  to  a  decision  as 
to  whether  the  facts  found  are  sufficient  to  sustain 
the  judgment  rendered.  (Glldersleeve  v.  New  Mex- 
ico Min.  Co.,  161  U.  S.  573;  Haws  v.  Victoria  M.  Co., 
160  U.  S.  303;  Harrison  v.  Perea,  168  U.  S.  311;  Kar- 
ricii  V.  Hamiaman,  168  U.  S.  328;  San  Pedro  &  Canon 
Agua  Co.,  146  U.  S.  120;  Wasatch  Min.  Co.  v.  Cres- 
cent Min.  Co.,  148  U.  S.  293;  The  Blue  .Jacket  v.  Ta- 
coma  Mill  Co.,  144  U.  S.  371;  Mammoth  Min.  Co.  v. 
•  Salt  Lake  Foundry  &  Mach.  Co.,  151  U.  S.  447.)  The 
right  of  appeal  to  the  supreme  court  from  a  final  or- 
der made  by  the  supreme  court  of  a  territory  in  a 
habeas  corpus  case,  involving  the  question  of  per- 
sonal freedom,  is  not  repealed  by  the  act  of  March  3, 
18S5.  (Gonzales  v.  Cunningham,  164  U.  S.  612.)  The 
supreme  court  has  jurisdiction  to  review  a  judgment 
of  the  supreme  court  of  a  territory  in  which  is  drawn 
in  que.sition  the  authority  of  the  territory  under  its 
Fed.  Pboc— 64. 


§  214  SUPREME    COURT— JURISDICTION".  758 

Organic  Act  to  extend  its  taxing  power  over  a  res- 
eiTation  created  by  act  of  Congress,  within  its  lim- 
its. (Maricopa  &  Plioeniz  R.  Co.  v.  Territory  of  Ari- 
zona, 156  U.  S.  347.)  Unless  a  manifest  error  is  dis- 
closed, the  supreme  court  will  not  disturb  a  decision 
of  the  supreme  court  of  a  territory  construing  a  local 
statute.     (Fox  v.  Haarstick,  156  U.  S.  674.) 

(1)  Writ  of  error. — No  writ  of  error  lies  from  a  ter- 
ritorial court  to  the  supreme  court  unless  some  act  of 
Congress  provides  therefor  (Clarice  v.  Bazadone.  1 
Cranch,  212),  and  the  action  of  a  territorial  court  re- 
fusing to  set  aside  a  judgment  by  default  is  not  re- 
viewable. (McAllister  v.  Kuhn,  96  U.  S.  87;  see  Kerr 
V.  Clampitt,  95  U.  S.  188.)  A  writ  of  error  does  not 
lie  to  an  order  refusing  a  motion  for  a  new  trial 
(Leitensdorfer  v.  Webb,  20  How.  176;  Sparrow  v. 
Strong,  4  Wall.  584);  nor  to  a  judgment  reversing  a 
judgment  with  instructions  to  award  a  venire  facias 
de  novo.  (Brown  v.  Union  Banli,  4  How.  465.)  A 
writ  of  error  to  an,  order  setting  aside  a  return  to  an 
execution  will  not  lie.  (Wells  v.  McGregor,  13  Wall. 
188.)  A  judgment  sustaining  a  demurrer  or  a  judg- 
ment affirming  such  decision  is  not  final  if  it  awards 
a  precedendo.  (Holcomb  v.  McCusick,  20  How.  552; 
Miners'  Bank  v.  U.  S.,  5  How.  213.)  A  writ  of  eiTor 
in  an  attachment  suit  will  not  bring  up  for  review 
upon  points  necessaiy  to  sustain  the  attachment  (Lei- 
tensdorfer v.  Webb,  20  How.  170);  nor  will  it  lie 
when  the  only  dispute  is  a  counter-claim,  if  the 
amount  is  less  than  on*  thousand  dollars.  (Nagle  v. 
llutledge,  100  U.  S.  G75.)  A  petition  for  rehearing  in 
the  court  below  presents  no  question  for  review  in  the 
supreme  court  (San  Pedro  &  Canon  Del  Agua  Co.  v. 
United  States,  146  U.  S.  120.) 

(2)  Jurisdictional  amount. — The  supreme  court  has 
not  jurisdiction  of  an  appejil  from  a  territorial  court, 


759  StrPREME   COURT— JURISDICTION.    §§  215-216 

unless  the  matter  in  dispute,  exclusive  of  costs,  ex- 
ceeds the  sum  of  ?5,000,  or  there  is  involved  the  va- 
lidity of  a  patent  or  copyright,  or  unless  a  Federal 
question  is  involved.  (Linford  v.  Ellison,  155  U.  S. 
503.)  The  liability  for  $5,000  each,  of  several  de- 
fendants, subscribers  to  stock  of  a  corporation,  can- 
not g-ive  jurisdiction  on  appeal  to  the  supreme  court 
from  a  teri'itorial  court,  although  they  contend  that 
thedr  subscriptions  were  paid  by  a  conveyance  of 
land  owned  jointly  by  them.  (Wilson  v.  IClesel,  164 
U.  S.  248.)  Although  the  judgment  of  the  territorial 
district  court  was  less  than  $5,000,  if  at  the  time  of 
its  atiirmance  in  the  territorial  supreme  court,  it 
amounted  with  interest  to  over  $5,000,  the  supreme 
court  has  jurisdiction.  (Benson  Min.  &  S.  Co.  v.  Alta 
M.  &  S.  Co.,  145  U.  S.  428.) 

§  215.  TJtah. — A  writ  of  error  from  the  su- 
preme court  of  the  United  States  to  the  supreme 
court  of  the  Territory  shall  lie  in  criminal  cases 
where  the  accused  shall  have  been  sentenced  to 
capital  punishment  or  convicted  of  bigamy  or 
polygamy.  (18  U.  S.  Stats.  254;  1  Sup.  Eev.  Stats. 
108.)  From  all  Judgments  and  decrees  of  the  su- 
preme court  of  the  Territory,  mentioned  in  this 
act,  in  any  case  arising  within  the  limits  of  the 
proposed  State  prior  to  admission,  the  parties  to 
such  judgment  shall  have  the  same  right  to  prose- 
cute appeals  and  writs  of  error  to  the  supreme 
court  of  the  United  States  as  they  shall  have  had 
by  law  prior  to  the  admission  of  said  State  into 
the  Union.     (28  U.  S.  Stats.  111.) 

§  216.  Territorial  courts  —  Procedure  on  ap- 
peal.— That  the  appellate  jurisdiction  of  the  su- 


§216  SUPKEME   COURT— JURISDICTION.  760 

preme  court  of  the  United  States  over  the  judg- 
ments and  decrees  of  said  territorial  courts  in  cases 
-of  trial  by  jury  shall  be  exercised  by  writ  of  error, 
and  in  all  other  cases  by  appeal,  according  to  such 
rules  and  regulations  as  to  form  and  modes  of  pro- 
ceeding as  the  said  supreme  court  have  prescribed 
or  may  hereafter  prescribe;  provided,  that  on  ap- 
peal, instead  of  the  evidence  at  large,  a  statement 
of  the  facts  of  the  case  in  the  nature  of  a  special 
verdict,  and  also  the  rulings  of  the  court  on  tlie 
admission  or  rejection  of  evidence  when  excepted 
to,  shall  be  made  and  certified  by  the  court  below, 
and  transmitted  to  the  supreme  court,  together 
with  the  transcript  of  the  proceedings  and  judg- 
ment or  decree;  but  no  appellate  proceedings  in 
said  supreme  court,  heretofore  taken  upon  any  such 
judgment  or  decree,  shall  be  invalidated  by  reason 
of  being  instituted  by  writ  of  error  or  by  appeal; 
and  provided,  further,  that  the  appellate  court 
may  make  any  order  in  any  case  heretofore  ap- 
pealed, which  may  be  necessary  to  save  the  rights 
of  the  parties;  and  that  this  act  shall  not  apply  to 
cases  now  pending  in  the  supreine  court  of  the 
United  States  where  the  record  has  already  been 
filed.     (18  U.  S.  Stats.  27;  1  Sup.  Rev.  Stats.  12.) 

Note.— To  entitle  to  nn  appeal,  the  case  must  be 
one  tried  by  a  jury.  (fStringfellow  v.  Cain,  99  U.  S. 
610;  Cannon  v.  Pratt,  99  U.  S.  619.)  If  the  territorial 
Buprenie  court  affirms  the  judgment,  it  adopts  the 
find'njrs  as  its  own  for  the  purpose  of  an  appeal 
(Strinyfellow  v.  Cain.  90  U.  S.  010;  Cannon  v.  Pratt, 
99  U.  S.  619);    but   if    it    reverses  the  judgment,  It 


761  SUPREME   COURT— JURISDICTION.  §§  217    218 

should  make  other  findings,  so  that  the  ease  may  be 
taken  on  appeal.     (Stringfellow  v.  Cain,  99  U.  S.  610.) 

§  217.     When  a  Territory  becomes  a  State  after 
judgment  or  decree  in  Territorial  court. — In    all 

cases  where  the  judgment  or  decree  of  any  court 
of  a  Territory  might  be  reviewed  by  the  supreme 
court  on  writ  of  error  or  appeal,  such  writ  of  error 
or  appeal  may  be  taken,  within  the  time  and  in  the 
manner  provided  by  law,  notwithstanding  such 
Territory  has,  after  such  judgment  or  decree,  been 
admitted  as  a  State;  and  the  supreme  court  shall 
direct  the  mandate  to  such  court  as  the  nature  of 
the  writ  of  error  or  appeal  requires.  (Eev.  Stats. 
sec.  703.) 

It  rests  with  Congress  to  declare  how  the  jndg- 
ments  of  territorial  courts  shall  be  carried  into  exe- 
cution, or  reviewed  iipon  appeal  or  writ  of  eiTor 
(Hunt  v.  Palao,  4  How.  589;  Benner  v.  Porter,  9  How. 
235);  but  concurrent  legislation.  State  and  Federal,  is 
necessary  in  respect  to  cases  pending  in  the  supreme 
court  for  review  to  enable  the  supreme  court  to  send 
down  the  mandate  for  further  proceedings  in  the 
proper  tribunal.  (Benner  v.  Porter,  9  How.  235.) 
After  a  tei'ritory  has  been  admitted  as  a  State,  no 
writ  of  error  or  appeal  lies  from  the  territorial  court 
without  the  aid  of  some  act  of  Congress.  (Hunt  v. 
Palao,  4  How.  589;  Sheppard  v.  Wilson,  5  How.  210; 
McNulty  V.  Batty,  10  How.  72;  Preston  v.  Bracken, 
10  How.  81.  See  Freeborn  v.  Smith,  2  Wall.  160; 
Northern  Pac.  Ky.  Co.  v.  Holmes,  155  U.  S.  137.) 

§  218.  Judgments  and  decrees  of  district  courts 
in  cases  transferred  from  Territorial  courts. — The 


§  219  SUPREME    COURT— JURISDICTION.  762 

judgments  or  decrees  of  any  district  court,  in  cases 
transferred  to  it  from  the  superior  court  of  any 
Territory  upon  the  admission  of  such  Territory  as 
a  State,  under  sections  five  hundred  and  sixty-seven 
and  five  hundred  and  sixty-eight,  may  be  reviewed 
and  reversed  or  affirmed  upon  writs  of  error  sued 
out  of,  or  appeals  taken  to,  the  supreme  court,  in 
the  same  manner  as  if  such  judgments  or  decrees 
had  been  rendered  in  said  superior  court  of  such 
Territory.  And  the  mandates  and  all  writs  neces- 
sary to  the  exercise  of  the  appellate  jurisdiction 
of  the  supreme  court  in  such  cases  shall  be  directed 
to  such  district  court,  which  shall  cause  the  same  to 
be  duly  executed  and  obeyed.  (Rev.  Stats,  sec. 
704.     See  sections  567  and  569.) 

§  219.  Judgments  and  decrees  of  court  of  ap- 
peals of  District  of  Columbia. — Any  final  judgment 
or  decree  of  the  said  court  of  appeals  may  be  re- 
examined and  affirmed,  reversed  or  modified  by  the 
supreme  court  of  the  United  States,  upon  writ  of 
error  or  appeal  in  all  causes  in  which  the  matter 
in  dispute,  exclusive  of  costs,  shall  exceed  the  sum 
of  five  thousand  dollars,  in  the  same  manner  and 
under  the  same  regulations  as  heretofore  provided 
for  in  cases  of  writs  of  error  on  judgment  or  ap- 
peals from  decrees  rendered  in  the  supreme  court 
of  the  District  of  Columbia;  and  also  in  cases,  with- 
out regard  to  the  sum  or  value  of  the  matter  in  dis- 
pute, wherein  is  involved  the  validity  of  any  patent 
or  copyright,  or  in  which  is  drawn  in  question  the 
validity  of  a  treaty  or  statute  of  or  an  authority 


763  SUPREME   COURT— JURISDICTION.  g§  230-221 

exercised  under,  the  United  States.  (27  U.  S. 
Stats.  436.) 

Amount.— If  the  matter  In  dispute  is  incapable  of 
being  reduced  to  a  pecuniary  standard  of  value,  the 
supreme  court  will  not  review  a  decision  of  the  court 
of  appeals  of  the  District  of  Columbia.  (Perrine  v. 
Slaclv,  164  U.  S.  452.)  The  supreme  court  cannot  re- 
view a  decision  of  the  court  of  appeals  of  the  District 
of  Columbia  in  a  criminal  case.  (Chapman  v.  United 
States,  164  U.  S.  436.) 

§  220.  Certiorari  from  supreme  court  to  court 
of  appeals  of  District  of  Columbia. — That  in  any 
case  heretofore  made  final  in  the  court  of  appeals 
of  the  District  of  Columbia  it  shall  be  competent 
for  the  supreme  court  to  require,  by  certiorari  or 
otherwise,  any  such  case  to  be  certified  to  the  su- 
preme court  for  its  review  and  determination,  with 
the  same  power  and  authority  in  the  case  as  if  it 
had  been  carried  by  appeal  or  writ  of  error  to  the 
supreme  court.     (29  U.  S.  Stats.  692.) 

§  221.     Appeals  from  the  court  of  claims. — An 

appeal  to  the  supreme  court  shall  be  allowed  on 
behalf  of  the  United  States,  from  all  judgments 
of  the  court  of  claims  adverse  to  the  United  States, 
and  on  behalf  of  the  plaintiff  in  any  case  where 
the  amount  in  controversy  exceeds  three  thousand 
dollars,  or  where  his  claim  is  forfeited  to  the 
United  States  by  the  judgment  of  said  court,  as 
provided  in  section  one  thousand  and  eighty-nine. 
(Eev.  Stats,  sec.  707.) 


§  221  SUPREME    COURT— JURISDICTION.  764 

Appeals  from  court  of  claims.— An  appeal  is  a  mat- 
ter of  right  wliich  tlie  court  cannot  prevent  and  wliich 
a  party  may  exercise  at  his  own  volition.  (United 
States  V.  Adams,  6  Wall.  103.)  The  United  States 
may  appeal  from  an  adverse  judgment  of  the  court 
of  claims  where  that  court  is  by  law  required  to  take 
jurisdiction  of  a  claim  against  it  and  judicially  de- 
termine the  case.  (Vigo's  Case,  21  Wall.  648;  Ex 
parte  Zellner,  9  Wall.  244.)  So  when  a  claim  is  re- 
ferred to  the  court  of  4:-laims  by  a  joint  resolution 
(Dickelman  v.  United  States,  9  Ct.  of  CI.  320);  but  if 
a  claim  is  merely  referred  by  act  of  Congress  to  as- 
certain a  particular  fact  to  guide  the  United  States 
in  the  execution  of  its  treaty  stipulations,  an  appeal 
will  not  lie.  (Ex  parte  Atocha.  17  Wall.  4.39.)  An 
appeal  will  not  lie  from  order  passed  upon  a  change 
of  attorneys  (Dismare  v.  United  States,  9  Ct.  of  CI. 
1);  or  an  order  refusing  a  new  trial.  (Ex  parte  Rus- 
sell, 13  Wall.  6&4.)  When  equitable  jurisdiction  is 
conferred  in  a  special  case  by  a  special  act,  no  state- 
ment of  facts  on  appeal  is  necessary,  this  section  not 
applying  to  such  case.  (Haiwey  v.  United  States,  4 
Morr.  Trans.  099.)  When  the  United  States  appeals, 
only  the  claim  allowed  is  brought  up.  (United  States 
V.  Hickey,  17  Wall.  9.)  When  the  court  of  claims 
fails  to  find  a  matea-ial  fact,  the  judgment  will  be  re- 
versed; or  when  the  amount  that  the  party  is  entitled 
to  recover  is  not  set  out  in  the  findings  (United  States 
V.  Clark,  94  U.  S.  73);  and  a  refusal  to  find  a  mate- 
rial fact  may  be  excepted  to.  (United  States  v. 
Adams,  9  Wall.  061.)  In  the  exercise  of  its  general 
jurisdiction  appeals  lie  to  the  supreme  court  from 
judgments  of  the  court  of  claims.  (United  States  v. 
Jones,  119  U.  S.  477.)  An  appeal  taken  before  the 
right  of  appeal  has  expired  is  not  vacated  by  the  ap- 
propriation by  Congress  of  the  amount  necessary  to 


765  SUPIJEME   COURT — JURISDICTION.  §  221 

pay  the  judgment.  (United  States  v.  Jones,  119  U.  S. 
477.)  This  section  authorizes  an  appeal  to  this  court 
in  behalf  of  the  United  States  from  all  judgments 
of  the  court  of  claims  adverse  to  the  United  States. 
(United  States  v.  Mosby,  133  U.  S.  273;  United  States 
V,  Davis,  131  U.  S.  36.)  Neither  the  court  of  claims 
nor  the  supreme  court  of  the  United  States  can  de- 
termine any  claim  against  the  United  States,  except 
in  cases  defined  by  Congress.  (United  States  v.  Glee- 
son,  124  U.  S.  255.) 

Under  this  section  of  the  Revised  Statutes,  no  ap- 
peal lies  from  a  judgment  of  the  court  of  claims 
against  the  United  States,  "pro  forma  for  purpose  of 
appeal,"  for  less  than  $3,000.  (United  States  v.  Glee- 
son,  124  U.  S.  255.)  Nothing  can  be  reviewed  on  ap- 
peal but  questions  of  law.  (Mahan  v.  United  States, 
14  Wall.  109;  Talbert  v.  United  States,  155  U.  S.  45.) 
The  judgment  of  the  court  of  claims  as  to  the  legal 
effect  of  the  ultimate  circumstantial  facts  in  a  case 
may  be  reviewed  in  the  supreme  court.  (United 
States  V.  Pugh,  99  U.  S.  265.)  The  rule  with  regard 
to  findings  of  fact  has  no  reference  to  a  case  of  equity 
jurisdiction  confen-ed  by  a  special  act.  In  such  case, 
where  appeal  lies,  this  court  must  review  the  facts 
and  the  law  as  in  other  equity  cases  appealed  fi-om. 
(Harvey  v.  United  States,  105  U.  S.  671.)  If  the 
court  of  claims  refuses  to  find  as  prayed,  the  prayer 
and  refusal  must  be  made  part  of  the  record,  that 
the  court  may  determine  whether  to  send  it  back  for 
a  finding.  (Hahan  v.  United  States,  14  Wall.  109.) 
Where  it  does  not  find  the  amount  of  loss,  its  judg- 
ment will  be  reversed  on  account  of  an  insufficient 
finding.  (United  States  v.- Clark,  94  U.  S.  73.)  Where 
it  sounds  all  the  evidence,  but  there  was  no  legal  evi- 
dence to  establish  such  fact,  this  court  must  revei-se 
tne  judgment.    (United  States  v.  Clark,  96  U.  S.  37.) 


§§  222-223  SUPREME  court— jurisdiction.  766 

The  supreme  court  cannot  give  the  court  of  claims 
any  directions  as  to  what  finding  it  shall  make. 
(United  States  v.  Child  ["United  States  v.  Adams"],  9 
Wall.  661.)  Under  act  of  1894  see  United  States  y. 
GilUat,  164  U.  S.  42.) 

§  222.  Time  and  manner  of  appeals  from  the 
court  of  claims. — All  appeals  from  the  court  of 
claiins  shall  be  taken  within  ninety  days  after  the 
judgment  is  rendered,  and  shall  be  allowed  under 
such  regulations  as  the  supreme  court  may  direct. 
(Eev.  Stats,  sec.  708.) 

Appeals  from,  court  of  claim.s. — The  limitation 
ceases  to  run  from  the  time  of  application  for  an  ap- 
peal, and  subsequent  delays  will  not  prejudice  the 
party,  (United  States  v.  Adams,  6  Wall.  101.)  Such 
appeals  must  be  taken  within  ninety  days  after  the 
judgment  is  rendered,  but  this  period  is  enlarged  to 
six  months  by  section  10  of  the  act  in  question.  In 
our  judgment,  the  same  right  can  be  exercised  by  the 
United  States  in  any  case  of  the  prosecution  of  a 
claim  in  the  district  or  circuit  courts  of  the  United 
States  under  said  act.  (United  States  v.  Davis,  131 
U.  S.  36.) 

§  223.  Judgments  and  decrees  of  State  courts 
on  writs  of  error. — A  liual  judgment  or  decree  in 
any  suit  in  the  highest  court  of  a  State  in  whicli  a 
decision  in  the  suit  could  be  had,  where  is  drawn  in 
question  the  validity  of  a  treaty  or  statute  of,  or 
an  authority  exercised  under,  the  United  States, 
and  the  decision  is  against  the  validity,  or  where 
is  drawn  in  question  the  validity,  of  a  statute  of, 
or  an  authority  exercised  under,  any  State  on  the 


767  SUPREME   COURT— JUKISDICTION.  §  223 

ground  of  their  being  repugnant  to  the  Constitu- 
tion, treaties,  or  laws  of  the  United  States,  and  the 
decision  is  in  favor  of  their  validity;  or  where  any 
title,  right,  privilege,  or  immunity  is  claimed  un- 
der the  Constitution,  or  any  treaty  or  statute  of, 
or  commission  held  or  authority  exercised  under, 
the  United  States,  and  the  decision  is  against  the 
title,  right,  privilege,  or  immunity,  specially  set 
ajDart  or  claimed  by  either  party,  under  such  Con- 
stitution, treaty,  statute,  commission  or  authority 
— may  be  re-examined  and  reversed  or  affirmed  in 
the  supreme  court  upon  a  writ  of  error.  The  writ 
shall  have  the  same  effect  as  if  the  judgment  or 
decree  complained  of  had  been  rendered  or  passed 
in  a  court  of  the  United  States.  The  supreme 
court  may  reverse,  modify,  or  affirm  the  Judgment 
or  decree  of  such  State  court,  and  may,  at  their  dis- 
cretion, award  execution  or  remand  the  same  to 
the  court  from  which  it  was  removed  by  the  writ. 
(Rev.  Stats,  sec.  709.) 

Review  of  State  Decisions. — Jurisdiction  is  not  con- 
ferred by  consent.  (jNIills  v.  Brown,  l(j  Petei*s,  525.) 
A  writ  of  error  from  the  supreme  court  to  review  a 
state  judgment  can  only  be  maintained  undea*  the  cir- 
cumstances defined  in  section  709  of  the  Revised  Stat- 
utes. (Duncan  v.  State  of  Missouri,  152  U.  S.  377.) 
A  judgment  of  an  inferior  State  court  which  is  the 
highest  court  of  the  State  in  which  a  decision  can  be 
had,  because  a  -RTit  of  error  has  been  denied  by  the 
supreme  court  of  the  State,  can  be  reviewed  if  it  in- 
volves a  Federal  question,  decided  against  plaintiff  in 
error,  by  writ  of  eiTor  from  the  supreme  court  of  the 
United  States.     (Bacon  v.  States  of  Texas,  163  U.  S. 


§  223  SUPREJiE   COURT— JURISDICTION.  768 

207;  Bergemann  v.  Backer,  157  U.  S.  655.)  A  writ  of 
error  to  a  State  court  brings  before  the  supreme 
court  only  tlie  Federal  question  in  the  case.  (Ashley 
V.  Ryan,  153  U.  S.  4.36.)  The  supreme  court  must  de- 
termine for  itself  whether  the  suit  really  involves 
any  federal  question  which  will  entitle  it  to  review 
the  judgment  of  the  State  court.  (Newport  Light  Co. 
V.  City  of  Newport,  151  U.  S.  527.)  It  is  requisite 
that  it  should  be  apparent  in  the  record  that  one  of 
the  questions  arose,  and  that  a  decision  was  made 
thereon.  (Crowell  v.  Randall,  10  Peters,  368.)  Tho. 
allegation  that  a  treaty  has  been  misconstrued,  in  re- 
fusing to  sanction  a  claim,  is  not  sufficient  (Chou- 
teau V.  Marguerite,  12  Peters,  507),  or  a  decision  in 
accordance  with  the  practice  of  the  State  court. 
(Commercial  Bli.  v.  Rochester,  15  Wail.  639.)  It  must 
appear  from  the  record  that  the  act  or  Constitution 
was  drawn  in  question  (Miller  v.  Nicholls,  4  Wheat. 
811),  or  the  record  should  show  a  complete  title  un- 
der the  treaty.  (Hickie  v.  Starke,  1  Peters,  94.)  It  is 
sufficient  if  frdm  the  facts  stated  such  a  question 
must  have  arisen  (Harris  v.  Dennie,  3  Peters,  292), 
and  that  the  act  was  misconstrued.  (Davis  v.  Pack- 
ard, 6  Peters,  41.)  The  question  must  appear  to  have 
arisen  by  clear  and  necessary  intendment  (Ocean  Ins. 
Co.  V.  Polleys,  13  Peters,  137),  and  to  have  been  nec- 
essarily involved  (Armstrong  v.  Treasurer,  16  Pet- 
ers, 281;  Mills  v.  Brown,  16  Peters,  525),  so  that  the 
State  court  could  not  have  given  judgment  without 
deciding  it  (Davis  v.  Texas,  139  U.  S.  651;  Johnson  v. 
Risk,  137  U.  S.  300;  California  Powder  Works  v. 
Davis,  151  U.  S.  389;  Winter-  v.  Montgomery,  156  U. 
S.  385;  Parmelee  v.  Lawrence,  11  Wall.  36;  Railroad 
Co.  V.  Rock,  4  Wall.  177,  and  that  the  question  was 
decided  in  the  State  court.  (Commorcial  Bank  v. 
Buckingham,  5  How.  317;  Smitli  v.  Hunter,  7  How. 


769  SUPBEME   COURT— JURISDICTION,  §  223 

738:  Taylor  v.  Morton,  2  Black,  481;  Cockroft  v.  Vose, 
14  Wall.  5;  Fowler  v.  Lamson,  1&4  U.  S.  252;  McNulty 
V.  People  of  Oaliforala,  149  U.  S.  645;  Morrison  v. 
Watson,  154  IT.  S.  111.)  Nelither  the  argument  of 
counsel  nor  the  opinion  of  the  court  below  can  be 
looked  to  for  this  purpose.  (Gibson  v.  Chouteau,  8 
Wall.  314.)  It  wil  not  be  entertained  if  the  judg- 
ment may  have  been  given  on  grounds  which  that 
section  does  not  make  cause  for  error  fSteines  v. 
Franklin  Co.,  14  Wall.  15;  Kennebec  R.  R.  v.  Portland 
R.  R.,  14  Wall.  23);  as  on  the  construction  of  a  State 
statute.  (Insurance  Co.  v.  The  Treasurer,  11  Wall. 
204.)  It  extends  to  riglits  protected  by  the  Constitu- 
tion. (New  Orleans  v.  De  Armas,  9  Peters,  224.) 
Under  this  section,  the  jurisdiction  of  the  supreme 
court  depends  upon  the  question  involved,  and  not 
upon  the  citizenship  of  the  parties.  (French  v.  Hop- 
kins, 124  U.  S.  524.)  The  jurisdiction  for  review  of 
the  judgments  of  State  courts  given  by  this  section 
extends  to  adverse  decisions  upon  rights  and  titles 
claimed  under  commissions  held  or  authority  exer- 
cised under  the  United  States,  as  well  as  to  rights 
claimed  under  the  Constitution,  laws  or  treaties  of 
the  United  States.  (Carson  v.  Dunham,  121  U.  S. 
421.  Compare  Crescent  City  etc.  Co.  v.  Butchers' 
Union  Co.,  120  U.  S.  141;  Pi'ovident  Sav.  Soc.  v.  Ford, 
114  U.  S.  635.)  This  section  applies  only  to  a  writ  of 
error  to  review  a  final  judgment  or  decree  on  a  suit 
In  the  highest  court  of  a  State.  (Farnsworth  v.  Ter- 
ritory of  Montana,  129  U.  S.  104.)  These  sections  do 
not  cover  a  criminal  case.  (Snow  v.  United  States,  118 
U.  S.  346.)  Section  709  points  out  the  cases  in  which 
the  judgment  or  decree  of  the  highest  court  of  a 
State  may  be  reviewed  by  the  supreme  court  of  the 
United  States.  (McKenna  v.  Simpson,  129  U.  S.  506.) 
Jurisdiction  under  this  section  does  not  depend  upon 
Fed.  Peoc— 66. 


§  223  SUPREME    COURT— JURISDICTION.  770 

the  citizenship  of  the  parties,  but  on  the  questions 
involved.  (French  v.  Hopldns.  124  U.  S.  r)24.)  The 
supreme  court  can  review  such  a  .iudpment  only 
when  the  right,  privilege,  or  immurLity  claimed  un- 
der the  Constitution  or  any  treaty  or  statute  of  the 
United  States  was  specially  set  up  or  claimed  in  the 
State  court  at  the  proper  time  and  in  the  proper  way. 
(Chappell  V.  Bradshaw.  128  U.  S.  l.'?2;  J.eeper  v.  Tex- 
as, 139  U.  S.  402;  Spies  v.  Illinois,  12:3  U.  S.  131;  Bald- 
win V.  State  of  Kansas.  129  U.  S.  52;  Chappell  v. 
Bradshaw.  128  U.  S.  132;  132  U.  S.  369;  Leoper  v. 
Texas,  139  U.  S.  462;  Brown  v.- Commonwealth  of 
Mass.,  144  U.  S.  573;  Duncan  v.  State  of  Missouri,  152 
TJ.  S.  377;  Morrison  v.  Watson,  154  U.  S.  Ill;  Bobb 
V.  Jamison,  155  U.  S.  416;  Winona  &  St.  Petere  L.  Co. 
V.  State  of  Minnesota,  159  U.  S.  540;  Re  Buchanan, 
158  U.  S.  31);  and  the  right  so  set  up  must  have  been 
denied,  either  expressly  or  by  necessary  implication. 
(Roby  v.  Colehour,  146  U.  S.  153;  Israel  v.  Arthur, 
152  U.  S.  355;  Snell  v.  City  of  Chicago,  152  U.  S.  191; 
Dower  v.  Richards,  151  U.  S.  658;  California  Powder 
Works  V.  Davis,  151  U.  S.  389;  The  Schuyler  Nat. 
Banlf  V.  Bollong,  150  U.  S.  85;  Winter  v.  City  Coun- 
cil of  Montgomery,  1.56  IJ.  S.  385;  Missouri  v.  An- 
driano,  138  U.  S.  497;  Reddall  v.  Bryan,  24  How.  420.) 
The  question  must  have  been  raised  before  judgment 
in  the  court  below.     (Miller  v.  Cornwall  R.   B.  Co., 

168  U.  S.  131;  Union  Mutual  Life  Ins.  Co.  v.  Kirchoff, 

169  U.  S.  103;  Bushnell  v.  Crooke  M.  &  S.  Co.,  148 
U.  S.  682.)  It  is  essential  to  the  exercise  by  this 
court  of  revisory  jurisdiction  over  the  final  judg- 
ments or  decrees  of  the  courts  of  the  States  that  the 
writ  of  error  sliould  be  allowed  either  by  a  ju.stice 
of  this  court,  or  by  the  proper  judge  of  the  State 
court,  after  ascertaining  by  an  examination  of  the 
record  that  a  question  cognizable  here  was  made  and 


771  SUPREME   COURT— JURISDICTION.  §  223 

decided  in  the  State  court,  and  that  snch  allowance 
was  justified.  (Gleason  v.  Florida,  9  Wall.  779;  But- 
ler V,  Gage,  138  U.  S.  52;  Havnor  v.  State  at  New 
York,  170  U.  S.  408;  In  re  Robertson,  156  U.  S.  183.) 
The  only  appellate  jurisdiction  to  review  State  judg- 
ments at  law  or  in  equity  is  by  writ  of  erix)r.  (Dower 
V.  Richards,  151  IJ.  S.  658.)  To  review  the  decision 
of  the  State  court  upon  a  question  of  fact  is  not  with- 
in the  jurisdiction  of  the  supreme  court.  (Dower  v. 
Richards.  151  U.  S.  6.58;  Bartlett  v.  Lockwood.  160 
U.  S.  357;  Eg^an  v.  Hart,  165  U.  S.  188;  Lloyd  v.  Mat- 
thews, 1.-5  U.  S.  222;  Hedrick  v.  Atchison  T.  &  Santa 
Fe  Ry.  Co.,  167  U.  S.  673);  and  this  is  so  even  though 
a  Federal  question  might  arise  if  the. question  of 
fact  were  decided  in  a  particular  way.  (Israel  v.  Ar- 
thur, 152  U.  S.  355.)  It  matters  not  that  the  judg- 
ment, denying  the  right,  was  rendered  in  a  manda- 
mus proceeding,  (McPherson  v.  Blacker,  146  U.  S. 
1.)  The  decision  must  be  a  final  one  (Oxley  Stave 
Co.  V.  County  of  Butler.  166  U.  S.  648).  or  the  writ 
will  be  dismissed.  (Drake  v.  Kochersperger,  170 
IT.  S.  303.)  An  order  made  upon  a  return  to  a  writ  of 
habeas  corpus  gi-anted  by  a  judge,  and  returnable 
before  him,  does  not  constitute  a  final  judgment  or 
decree  which  may  be  reviewed  by  the  supreme  court. 
(Clarke  v.  McDade,  165  U.  S.  168.)  Neither  is  a  judg- 
ment of  the  supreme  court  of  a  State  final  which  re- 
verses an  order  overruling  a  demurrer,  and  remands 
the  case  for  further  proceedings.  (Great  Western 
Tel.  Co.  V.  Burnham,  162  U.  S.  339;  Union  Mut.  L. 
Ins.  Co.  V.  Kirchoff.  160  U.  S.  374.)  The  decision  of 
the  highest  court  of  a  State  ordering  a  lower  State 
court  to  discharge  a  rule  for  contempt  is  not  a  final 
judgment  (Newport  Light  Co  v.  City  of  Newport,  151 
U.  S.  527);  neither  is  an  order  overruling  a  motion  to 
quash  an  execution.  (Loeber  v.  Schroeder,  149  U.  S. 
580.)    Where  the  State  supreme  court  of  the   State 


§  223  SUPREME   COURT— JURISDICTION.  772 

remanded  a  cause  for  further  proceedings,  the  judg- 
ment -was  not  final  (Rice  v.  Sanger,  144  U.  S.  197): 
neither  is  the  jndgmont  of  the  State  supreme  court 
merely  affirming  an  interlocutory  order  of  the  lower 
court.  (Meagher  v.  Minnesota  Mfg.  Co..  145  IT.  S. 
608.)  An  order  of  a  State  .judge  at  chambers  in  a 
habeas  corpus  case  is  not  reviewable.  (McKnight  v. 
James,  155  U.  S.  685.)  Where  the  case  was  decided 
on  an  independent  ground  broad  enough  to  maintain 
the  judgment,  and  not  involving  a  Federal  question, 
this  court  will  dismiss  the  wiit  of  eiTor  without  con- 
sidering the  Federal  question.  (Beatty  v.  Benton,  135 
U.  S.  244;  Marrow  v.  Brinkley,  129  U.  S.  178;  Hale  v. 
Alters,  132  U.  S.  554;  San  Francisco  v.  Itsell,  133  U. 
S.  65;  Hopkins  v.  McLure,  133  U.  S.  380;  Hale  v. 
Akers.  132  U.  S.  554.)  This  principle  has  since  been 
repeatedly  applied  as  in  Jenldns  v.  Lowenthal,  110 
U.  S.  222;  Murdock  v.  City  of  Memphis,  20  Wall.  590, 
636;  McManus  v.  O' Sullivan,  91  U.  S.  578;  Brown  v. 
Atwell,  92  U.  S.  327;  Citizens'  Bank  v.  Board  of  Liqui- 
dation. 98  U.  S.  '140;  Chouteau  v.  Gibson,  111  U.  S. 
200;  Adams  Co.  v.  Burlington  &  M.  R.  Co.,  112  U.  S. 
123;  Detroit  City  Ry.  v.  Guthard,  114  U.  S.  133;  New 
Orleans  Water  AVorks  Co.  v.  La.  Sugar  Ref.  Co.,  125 
U.  S.  18;  De  Saussure  v.  Gaillard,  127  U.  S.  216,  234; 
Beaupre  v.  Noyes,  138  U.  S.  397  ;  Hale  v.  Akers.  132 
U.  S.  554;  Eustis  v.  Bolles,  150  U.  S.  361;  Hammond 
V.  Conn.  Mut.  T^fe  Ins.  Co.,  150  U.  S.  633;  Haley  v. 
Breeze,  144  U.  S.  130;  Northern  Pac.  Ey.  Co.  v.  Ellis, 
144  U.  S.  458;  Ca-stillo  v.  McConnico,  168  U.  S.  674; 
Egan  V.  Hart,  165  U.  S.  188;  Gillis  v.  Stinchfield,  159 
U.  S.  658;  Rutland  R.  R.  Co.  v.  Cent.  Vt.  R.  R.  Co., 
159  U.  S.  030;  Bacon  v.  State  of  Texas,  163  U.  S.  207; 
Seneca  Nation  v.  Christy,  162  U.  S.  283;  Missouri 
Pac.  Ry.  Co.  V.  Fitzgerald.  160  U.  S.  556;  Chemical 
Nat.  P.;ink  v.  City  Bank  of  Portage,  160  U.  S.  646; 
State  of  Connecticut  v.  Woodruff,  153  U.  S.  689;  State 


773  SUPREME   COURT— JURISDICTION.  §  233 

of  Michigan  v.  Flint  &  P.  M.  R.  Coo.,  152  U.  S.  303; 
Dower  v.  Richards,  151  U.  S.  658;  California  Powder 
Works  V.  Davis,  151  U.  S.  389;  Wells  v.  Goodnow's 
Admrs.,  150  U.  S.  84;  Rector  v.  Ashley,  6  Wall.  142.) 
This  court  has  no  jurisdiction  to  review  a  judgment 
of  the  highest  court  of  a  State,  unless  a  Federal 
question  has  been,  either  in  express  terms  or  by  nec- 
essary effect,  decided  by  that  court  against  the  plain- 
tiff in  error.  (New  Orleans  Water  Works  v.  Louisi- 
ana Sugar  Ref.  Co.,  125  U.  S.  18;  De  Saussure  v.  Gail- 
lard,  127  U.  S.  216;  Hale  v.  Akers,  132  U.  S.  554;  San 
Francisco  v.  Itsell,  133  U.  S.  65;  Missouri  v.  Andriano, 
138  U.  S.  497.)  The  party's  right  must  have  depended 
on  the  statute.  (Williams  v.  Norris,  12  Wheat.  117; 
Montgomery  v.  Hernandez,  12  Wheat.  129;  Ryan  v. 
Thomas,  4  Wall.  603.)  It  is  not  necessary  to  state  in 
terms  upon  the  record  that  the  law  was  drawn  in 
question,  it  is  sufficient  if  it  shows  that  the  law  must 
have  been  misconstrued  or  the  decision  could  not  have 
been  made.  (W^illson  v.  Marsh  Co.,  2  Peters,  245; 
Furman  v.  Nichol,  8  Wall.  44;  Satterlee  v.  Matthew- 
son,  2  Peters,  380;  Jackson  v.  Lamphire,  3  Peters, 
280.)  When  the  decision  is  against  the  right  claimed 
under  the  Constitution  or  laws  of  the  United  States, 
a  writ  of  error  will  lie  to  bring  the  judgment  of  the 
State  court  before  this  court  for  re-examination  and 
revision.  (Ablemau  v.  Booth,  21  How,  506.)  The 
statute  must  be  specially  set  up  by  the  party,  and 
the  decision  must  be  against  the  claim  (Montgomery 
V.  Hernandez,  12  Wheat.  129);  but  the  point  must  be 
raised  and  decided  against  the  party  applying  for 
the  writ  in  the  State  court  to  which  the  writ  is  di- 
rected. (Farney  v.  Towle,  1  Black.  350.)  The  point 
must  be  distinctly  raised  in  the  court  below  (Hoyt  v. 
Shelden,  1  Black,  518;  Yesler  v.  Board  of  Harbor 
Commrs.,  146  U.  S.  646;  Morrison  v.  Watson,  154  U. 
S.  Ill;  Zadig  v.  Baldwin,  166  U.  S.  485;  Oxleg  Stave 


§  223  SUPREME    COURT— JLKISDICTIOX.  774 

Co.  V.  County  of  Butler,  166  U.  S.  648;  Kipley  v. 
State  of  Illiuuis,  170  U.  S.  182);  and  shown  by  the 
record  (R.  R.  Co.  v.  Rock.  4  Wall.  177;  Louisville  & 
N.  Ry.  Co.  V.  City  of  Louisville,  166  U.  S.  709;  Powell 
V,  Brunswick  County,  150  U.  S.  433;  State  of  Con- 
necticut V.  Woodruff,  158  U.  S.  689;  Bobb  v.  Jamison, 
155  U.  S.  416;  Re  William  Robertson,  156  U.  S.  183), 
wh'ch  must  be  properly  authenticated.  (Caperton  v. 
Ballard,  14  Wall.  238.)  Nothing  out  of  the  record 
can  be  taken  into  consideration.  (Walker  v.  Villa- 
vaso,  6  Wall.  124);  not  even  specificatious  of  error. 
(Fowler  v.  Lamson,  164  U.  S.  2.52;  Chicago  &  N.  W. 
Ry.  Co.  V.  City  of  Chicago.  164  U.  S.  454;  Clarke  v. 
McDnde.  165  TT.  S.  168;  but  see  Chicago  B.  &  Q.  Ry. 
Co.,  166  U.  S.  226.)  The  decision  cannot  be  questioned 
by  the  party  in  whose  favor  it  was  given.  (Rutland  R. 
R.  Co.  V.  Cent.  Vt.  R.  R.  Co.,  159  U.  S.  630);  and  the 
right  or  immunity  must  be  one  of  the  plaintiff  in  error 
and  not  of  a  third  person.  (Texas  &  Pac.  Ry.  Co.  v. 
Johnson,  151  U.S.  81;  Ludeling  v. Chaff e,  143  U.  S.301.) 
A  certificate  of  the  presiding  ju.stice  is  not  conclusive 
to  show  that  a  Federal  question  Avas  raised  in  the  case 
(Caperton  v.  Bowyer,  14  Wall.  216),  nor  the  record 
of  the  judge  who  tries  the  case  at  nisi  prius.  (Inglee 
V.  Coolidge,  2  Wheat.  303.)  Where  the  decision  is 
made  on  settled  pre-existing  rules  of  general  juris- 
prudence the  case  cannot  be  brought  here  for  reviev? 
(Bank  of  West  Tenne.ssee  v.  Citizens"  Bank,  14  Wall. 
9;  Palmei"  v.  Marston,  14  AYall.  10;  Sevier  v,  Haskell, 
14  Wall.  12;  Delmas  v.  Ins.  Co.,  14  Wall.  661),  nor 
if  decided  exclusively  upon  the  principles  of  the 
jurisprudence  of  the  Stale.  (IMarqueze  v.  Bloom,  16 
Wall.  ;151.)  The  jurisdiction  is  maintainable  if  the 
caise  shows  that  Federal  questions  were  involved, 
though  it  also  appears  that  there  were  other  defenses, 
if  these  defenses  afford  no  legal  answer  to  the  suit 
(Maguire  v.  Tyler,  8  Wall.  651).     If  the  court  is  the 


775  SUPREME   COURT— JURISDICTION.  §  S23 

highest  which  may  consider  the  question,  the  right  of 
review  exists,  although  it  be  not  the  liighest  court  in 
the  State  (Downham  v.  Alexandria,  9  Wall,  659;  Mil- 
ler V.  Joseph,  17  Wall.  655;  Bacon  v.  State  of  Texais, 
163  U.  S.  207;  Bergemann  v.  Backer,  157  U.  S.  655), 
and  though  the  case  be  decided  on  an  equal  division. 
(Hartman  v.  Greenhow,  102  U.  S.  672.)  In  order  to 
give  the  supreme  court  jurisdiction  under  this  section, 
because  of  the  denial  by  a  State  court  of  any  title, 
right,  privilege,  or  immunity  claimed  under  the  Con- 
stitution, or  any  treaty  or  statute  of  the  United 
States,  it  must  appear  on  the  record  that  it  was  duly 
set  up,  that  the  decision  was  advea-se,  and  was  made 
in  the  highest  coui't  of  the  State.  (Spies  v.  Ill;nois, 
123  U.  S.  132;  French  v.  Hoplcins,  124  U.  S.  524.)  Ju- 
risdiction under  this  section,  for  the  review  of 
the  decision  of  the  highest  court  of  a  State,  is  not 
dependent  upon  the  citizenship  of  the  parties.  The 
court  looks  only  to  the  questions  involved.  (French 
V.  Hopkins,  124  U.  S.  524.)  If  a  Federal  question  is 
fairly  presented  by  the  record,  and  its  decision  is  nec- 
essary to  the  determination  of  the  case,  a  judgment 
which  rejects  the  claim,  but  avoids  all  reference  to  it, 
is  as  much  against  the  right,  witliin  the  meaning  of 
this  section,  as  if  it  had  been  specifically  referred  to, 
and  the  right  directly  refused.  But  if  a  decision  of 
such  a  question  is  rendered  unnecessary  by  the  view 
which  the  court  properly  takes  of  the  rest  of  the  case, 
within  the  scope  of  the  pleadings,  the  judgment  is  not 
open  to  I'eview  in  the  supreme  court.  (Chapman  v. 
Goodnow,  123  U.  S.  540.) 

Constitution  and  statutes.— There  must  be  fair 
color  for  claiming  that  rights  under  the  Federal  Con- 
stitution have  been  violated  in  order  to  give  the  su- 
preme court  jurisdiction  to  review  a  State  judgment 
(Wilson  V.   State  of  North  Carolina,   169  U.   S.  586; 


§  223  SUPREME    COURT— JURISDICTION.  776 

Hamblin  v.  Western  Land  Co.,  147  U.  S.  531;  St. 
Louis,  G.  &  F.  S.  Ry.  Co.  v.  State  of  Missouri,  156  U. 
S.  478;  Douglas  v.  Wallace,  161  U.  S.  346).  A  con- 
ti-act  can  only  be  impaired  within  the  meaning  of  Sec. 
709.  Rev.  Stats.,  by  some  subsequent  statute  of  the 
State  which  has  been  upheld  or  -g-iven  effect  by  the 
State  court  (Bacon  v.  State  of  Texas,  163  U.  S.  207; 
Central  Land  Co.  v.  Laidley,  150  U.  S.  103;  McNulty 
V.  reople  of  California,  149  U.  S.  645;  Wi-nona  &  St. 
Peters  R.  Co.  v.  Town  of  Plainview,  143  U.  S.  371). 
Where  one  construction  of  the  U.  S.  Constitution  or 
laws  will  defeat  some  right,  title  or  immunity  of 
plaintiff  in  error,  and  another  construction  will  sus- 
tain the  right,  the  case  is  one  arising  under  the  Con- 
stitution (Cook  V.  Aveiy,  147  U.  S.  375;  Shively  v. 
Bowlby,  152  U.  S.  1;  Stanley  v.  Schwalby,  162  U.  S. 
255;  McCormick  v.  Market  Nat.  Bank,  165  U.  S.  538). 
The  following  questions  have  been  held  to  arise  under 
the  Constitution  and  laws  of  the  United  States,  and 
to  bring  a  case  within  the  jurisdiction  of  the  supi'eme 
court  to  review  by  writ  of  error  to  the  State  supreme 
court:  Power  of  national  bank  to  become  stockholder 
in  a  savings  bank  (California  Bank  v.  Kennedy,  167 
U.  S.  362);  whether  due  eft'ect  has  been  given  in  a 
State  court  to  the  judgment  of  a  court  of  another 
State,  a  Federal  court  (Central  Nat.  Bank  v.  Stevens, 
169  U.  S.  432;  Huntington  v.  Attrill,  146  U.  S.  657; 
Great  Western  Tel.  Co.  v.  Purdy,  162  U.  S.  329;  but 
see  Winona  etc.  R.  Co.  v.  Plainview,  143  U.  S.  371). 
Whether  a  given  act  of  Congress  or  the  U.  S.  CouKli- 
tution  furnish  a  complete  defense  to  an  action  to 
enforce  a  State  statute  (Missouri,  K.  &  T.  Ry.  Co.  v. 
Haber,  169  U.  S.  613;  Williams  v.  Eggleston,  170  U. 
S.  304).  Whether  an  assignee  in  bankruptcy  is  en- 
titled to  certain  property  of  the  bankrupt  as  against 
adverse  claimants  thereto  (Dushane  v.  Beall,  161  U. 
S.  513;  Williams  v.  Heard,  140  U.  S.  529).     Whether 


777  SUPREME    COUET— JURISDICTION.  §  223 

levee  bonds  for  a  loan  of  gold  coin  were  invalid  be- 
cause payable  in  gold  coin  without  express  authority 
of  statute  to  be  made  so  payable  (Woodruff  v.  State 
of  Mississippi,  162  U.  S.  291).  Whether  private  prop- 
erty has  been  taken  for  any  other  than  a  public  use 
(Fallbrook  Irr.  Dist.  v,  Bradley,  164  U.  S.  112). 
Whether  an  equitable  title  apparently  conveyed  by 
proceedings  in  the  U.  S.  land  office  was  of  any  effect 
(Hussman  v.  Durham,  165  U.  S.  144).  A  Federal 
question  is  raised  by  an  unsuccessful  contention  in 
a  State  court  that  the  obligations  of  a  contract  have 
been  Imijaired  by  State  statutes  and  ordinances, 
(Chicago  B.  &  Q.  R.  R.  Co.  v.  State  of  Neb.,  170  U.  S. 
57;  Giozza  v.  Tiernan,  148  U.  S.  657;  Mobile  &  O.  R. 
Co.  V.  State  of  Tennessee,  153  U.  S.  486;  Wilmington 
&  W.  R.  R.  Co.v.  Alsbrook,  146  U.  S.  279);  and  by  an 
unsuccessful  contention  that  a  State  statute  deprives 
defendant  of  property  without  due  process  of  law 
(Tregea  v.  Modesto  Irr.  Dist.,  164  U.  S.  179).  If  the 
decision  is  in  favor  of  the  validity  of  the  authority 
set  up  and  claimed  no  Federal  question  Is  presented 
(Bartlett  v.  Lockwood,  160  U.  S.  357;  Carothers  v. 
Mayer,  164  U.  S.  325).  If  the  decision  of  the  State 
court  holds  the  State  statute  void  as  in  contraven- 
tion of  the  U..  S.  Constitution,-!!  cannot  be  reviewed  by 
the  supreme  court  on  writ  of  error  (McNulty  v.  People 
of  Calif ornia,  149  U.  S.  645).  The  supreme  court  cannot 
review  any  question  as  to  the  admission  or  rejection 
of  evidence  in  the  State  court  which  does  not  bear 
directly  upon  some  matter  of  a  Federal  nature  (Cleve- 
land C.  C.  &  St.  L.  R.  Co.  V.  Backus,  154  U.  S.  439; 
Central  Pac.  Ry.  Co.  v.  State  of  California,  162  U.  S. 
91).  The  following  questions  have  been  held  not  to 
arise  under  the  United  States  Constitution  or  laws: 
Whether  a  person  has  the  right  to  practice  law  in 
State  courts  (In  re  Belva  Lockwood,  154  U.  S.  116); 
which  of  two  parties  has  a  right  to  stock  in  a  national 


§  223  SUPREME    COURT— JURISDICTION.  77S 

bauk,  where  the  national  banking  act  is  only  col- 
laterally involved  (Leyson  v.  Davis,  170  U.  S.  36); 
the  construction  of  a  State  statute  of  limitations, 
(Ludeling  v.  ChafCe,  143  U.  S.  301);  whether  a  claim 
against  a  national  bank  was  an  existing  demand  at 
the  time  the  bank  suspended  (Chemical  Bank  v.  Hart- 
ford D.  Co.,  161  U.  S.  1);  a  question  of  State  practice 
(Thorington  v.  City  of  Montgomery,  147  U.  S.  490; 
Northern  Pac.  Ry.  Co.  v.  Patterson.  154  U.  S.  130; 
Lambert  v.  Barrett,  159  U.  S.  660);  the  sufficiency  of 
an  indictment  found  in  a  State  court  (Ke  Robertson, 

156  U.  S.  183);  the  denial  of  an  application  to  amend 
a  petition  for    removal    (Stevens'  Adm'r  v.  Nichols, 

157  U.  S.  370);  the  construction  of  a  State  statute 
(Dougherty  v.  Nevada  Bauk,  160  U.  S.  171;  Bacon  v. 
State  of  Texas,  163  U.  S.  207);  time  when  a  cause  of 
action  accrues  under  a  State  statute  (Great  Western 
Tel.  Co.  V.  Purdy,  162  U.  S.  329). 

Where  the  question  is  not  as  to  the  validity  of  the 
Constitution  or  act  but  merely  as  to  the  application 
of  the  same  to  the  case  no  Federal  question  is  in- 
volved (Cameron  v.  United  States,  146  U.  S.  533). 
The  question  of  estoppel  and  bar  by  former  judg- 
ments is  not  a  Federal  question  (California  v.  IIol- 
laday,  159  U.  S.  415).  The  right  of  the  plaintiff  in 
error  is  limited  to  the  inquiry  whether,  in  the  case 
presented,  the  statute  is  so  applied  as  to  deprive  him 
o't"  property  without  due  process  of  law  (Castillo  v. 
McConnico,  168  U.  S.  674).  In  order  to  sustain  a  writ 
of  error  the  record  must  show  that  the  act  of  the 
legislature  violates  the  Constitution  of  the  United 
Stales,  not  merely  the  State  constitution  (Levy  v.  Su- 
perior court  of  San  Francisco,  167  U.  S.  175;  Kipley  v. 
State  of  Illinois,  170  U.  S.  182;  Galveston  H.  &  S. 
A.  K.  Co.  V.  State  of  Texas,  170  U.  S.  226;  Sage  v. 
Board  of  Liquidation,  144  U.  S.  647;  Adams  v.  Same, 


779  SUPREME   COUBT— JURISDICTION,  §  223 

144  U.  S.  651).  The  construction  which  a  State  court 
places  upon  its  own  judgments  (Newport  Light  Co. 
V.  City  of  Newport,  151  U.  S.  527). 

Under  treaty. — (Owings  v.  Norwood,  5  Cranch,  344; 
Martin  v.  Hunter,  1  Wheat.  304;  Moreland  v.  Page, 
20  How.  522;  Mining  Co.  v.  Boggs,  3  Wall.  304;  Ma- 
guire  V.  Tyler,  8  Wall.  G50;  Ward  v.  Race  Horse,  163 
U.  S.  504;  Budzisz  v.  Illinois  Steel  Co.,  170  U.  S.  41). 
Right  and  title  to  lands.  (Gordon  v.  Caldcleugh.  3 
Cranch,  2G8;  Matthews  v.  Zane,  4  Cranch,  382;  Mc- 
Clung  V.  Silliman,  6  Wheat.  598;  Buel  v.  Van  Ness, 
8  Wheat.  312;  Fulton  v.  McAffee,  16  Peters,  149;  City 
of  Mobile  v.  Eslava,  16  Peters,  234;  Crowell  v.  Ran- 
dell,  16  Peters,  368;  Chouteau  v.  Eckhardt,  2  How. 
344:  McDonough  v.  Millaudon,  3  How.  693;  Walker 
V.  Taylor,  5  How.  64;  Scott  v.  Jones,  5  How.  343; 
Kennedy  v.  Hunt,  7  How.  586;  Neilson  v.  Lagow,  7 
How.  772;  Almonester  v.  Kenton,  9  How.  1;  Doe,  ex 
deni.  Barbaric  v.  Eslava,  9  How.  421;  Henderson  v. 
Tennessee,  10  How.  311;  Lessieur  v.  Price,  12  How. 
59.)  The  decision  of  the  supreme  court  of  Louisiana 
against  a  right  asserted  under  a  treaty  presents  a 
question  for  jurisdiction  of  this  court.  (Burthe  v. 
Denis,  133  U.  S.  514.)  This  section  is  section  25  of  the 
Judiciary  Act,  reproduced,  somewhat  enlarged. 
(Burthe  v.  Denis,  133  U.  S.  514.  See  Weston  v. 
Charleston,   2  Peters,  449.) 

Personal  rights.— Right  to  freedom.  (Choteau  v. 
Marguerite  12  Peters,  507;  Strader  v.  Graham,  10 
How.  82;  Ward  v.  Race  Horse,  163  U.  S.  504.)  To 
writ  of  habeas  corpus.  (Holmes  v.  Jennison,  14  Pe- 
ters, 540.)  To  religious  liberty,  (Permoli  v.  First 
Municipality,  3  How.  589.) 

In  criminal  cases.— A  state  may  not  sue  out  a  writ 
of  error  except  in  a  case  under  and  in  accordance 


§  238  SUPREME   COURT— JURISDICTION.  780 

with  express  statutes.  (U.  S.  v.  Sanges,  144  U.  S. 
31U.)  AVliere  a  party  under  indictment  for  violation 
of  a  State  law  pleads  a  license  from  the  United 
States,  and  decision  of  State  court  is  against  the  li- 
cense, the  United  States  supreme  court  has  juris- 
diction. (McGuire  v.  Com.,  3  Wall.  382.)  The  re- 
versal of  a  judgment  in  a  criminal  case  by  State 
supreme  court  ordering  new  trial  is  not  a  "final  judg- 
ment." (Rankin  v.  State,  11  Wall.  380.)  Tax  repug- 
nant to  United  States  constitution.  (Weston  v. 
Charleston,  2  Peters,  449.)  Consideration  of  a  con- 
tract. (Craig  V.  Missouri,  4  Peters,  410.)  Not  on  a 
State  law  only.  (McBride  v.  Hoey,  11  Peters,  167; 
Commercial  Bank  v.  Buckingham,  5  How.  317;  Scott 
V.  Jones,  5  How.  343;  Congdon  v.  Goodman,  2  Black, 
574;  Michigan  C.  R.  Co.  v.  Michigan  S.  R.  R.,  19  How. 
379;  Withers  v.  Buckley,  20  How.  84;  Beers  v.  Arkan- 
sas, 20  How.  527;  Medberry  v.  Ohio,  24  How.  413; 
Porter  v.  Foley,  24  How.  415;  Attorney  General  v. 
Meeting  House,  1  Black,  262;  Austin  v.  The  Alder- 
men, 7  Wall.  694;  Worthy  v.  The  Commissioners,  9 
Wall.  611. J  State  decision  against  execution  by 
United  States  marshal.  (Clements  v.  Berry,  11 
How.  398;  Buck  v.  Colbath,  3  WaU.  334;  Sharpe  v. 
Doyle,  102  U.  S.  686.)  Against  validity  of  an  entry 
of  land  allowed  by  United  States  officei'S.  (Lytle  v. 
Arkansas,  22  How.  193.)  Title  to  land.  (Bell  v. 
Hearne,  19  How.  252;  Burke  v.  Gaines,  19  How.  388; 
Wyun  V.  Morris,  20  How.  3;  Berthold  v.  McDonald, 
23  How.  334;  Laufear  v.  Hunley,  4  Wall.  205;  Car- 
penter V.  Williams,  9  Wall.  785.)  Authority  of  Unit- 
ed States  marshal.  (Buck  v.  Colbath,  3  Wall.  334.) 
In  insolvency.  (Crapo  v.  Kelly,  16  Wall.  610.)  In 
bankruptcy.  (Strader  v,  Baldwin,  9  How.  261;  Cal- 
cote  V.  Stanton.  18  How.  243.)  Mexican  treaty.  (Gill 
V.  Oliver,  11  How.  529.)  If  the  State  refuses  to  carry 
into  effect  the  mandate  of  the  supreme  court,   the 


781  .Si;Pl{EME   COUBT— JURISDICTION.  §  323 

latter  will  proceed  to  a  final  decision  and  award  ex- 
ecution (Martin  v.  Hunter,  1  Wheat.  304),  and  may 
send  its  process  to  either  the  appellate  or  the  inferior 
court  of  a  State.  (Williams  v.  BrufCy,  102  U.  S.  248.) 
The  power  to  review  does  not  extend  to  statutes 
passed  by  Territorial  legislatures.  (Miners'  Bank  v. 
Iowa,  12  How.  1;  Messenger  v.  Mason,  10  Wall.  507.) 
Questions  of  evidence.  (Mackay  v.  Dillon,  4  How. 
421;  White  v.  Wright,  22  How.  19;  Dupasseur  v. 
Eochereau,  21  Wall.  132;  Railroad  Co.  v.  Mai-yland, 
21  Wall.  456;  Edwards  v.  Elliott,  21  Wall.  532;  Moore 
V.  Mississippi,  21  Wall.  636;  Atherton  Ex.  v.  Fowler, 
3  Cent.  L.  J.  60;  Long  v.  Converse,  8  Chic.  L.  N.  121: 
S.  C.  13  Alb.  L.  J.  118. 

Practice.— Remedy  by  writ  of  error.  (Verden  v. 
Ooleman,  22  How.  192;  Webster  v.  Reid,  11  How. 
437.)  Right  of.  (Twitchell  r.  The  Commonwealth.  7 
Wall.  321.)  Waiver  of  right.  (Erwin  v.  Lowry,  7 
How.  172.)  When  operates  as  supersedeas.  (O'Dowd 
V.  Russell,  14  Wall.  402;  see  Hamilton  Co.  v. 
Massachusetts,  6  Wall.  632;  Tarver  v.  Keach,  15 
Wall.  67;  The  Victory,  6  Wall.  382.)  Remanding 
cause  for  further  proceedings.  (Winn  v.  Jackson,  12 
Wheat.  135;  Pepper  v.  Dunlap,  5  How.  51.)  Dis- 
missal. (Christ  Church  v.  Philadelphia.  20  How.  26; 
Millingar  v.  Hartupee,  6  Wall.  258;  Gleason  v.  Flor- 
ida, 9  Wall.  779;  Bartcineyer  v.  Iowa,  14  AVall.  26; 
Hurley  v.  Street,  14  Wall.  85;  Penny  wit  v.  Eaton,  15 
Wall.  380:  Stanley  v.  Schwalby,  162  U.  S.  255;  Bacon 
V.  State  of  Texas,  163  U.  S.  207;  Eustis  v.  Bolles,  150 
U.  S.  361.)  For  defect  of  parties.  (Railroad  Co.  v. 
Johnson,  15  Wall.  8.)  Interlocutory  decree.  (Red- 
dall  V.  Bryan,  24  How.  42!J.)  Final  judgment,  what 
is.  (Weston  V.  Charleston,  2  Peters,  449;  Olney  v. 
Arnold,  3  Dall.  308.)  Advei'se  party.  (Poydras  de 
la  Lande  v.  Treasurer,  17  How.  1.)    Writ,  to  what 

Fed.  Proc— 66. 


^  224  SUPREME   COURT— JUKISDICTION.  782 

court  issued.  (Miller  v.  Joseph,  17  Wall.  655;  Stanley 
V.  Scbwalby,  162  U.  S.  255.)  When  jurisdiction  does 
not  attach.  (Randall  v.  Howard,  2  Black,  585;  Day 
V.  Gallup,  2  Wall.  97.)  When  portion  of  State  judg- 
ment is  correct  and  separable.  (Bank  of  Commerce 
V.  State  of  Tennessee,  163  U.  S.  416.) 

§  224.  Precedence  of  writs  of  error  to  State 
courts  ill  criminal  cases. — Cases  on  writ  of  error, 
to  revise  the  judgment  of  a  State  court  in  any  crim- 
inal cases,  shall  have  precedence  on  the  docket  of 
the  supreme  court  of  all  cases  to  which  the  govern- 
ment of  the  United  States  is  not  a  party,  excepting 
only  such  cases  as  the  court,  in  its  discretion,  may 
decide  to  be  of  public  importance.  (Eev.  Stats, 
sec.  710.) 


783  COMMON    TO   MORE    THAN   ONE   COUBT. 


OHAPTBR  XIV. 

PKOVISIONS  COMMON  TO  MORE  THAN  ONE  COURT  OR 
JUDGE. 

§  225.  Exclusive  jurisdiction  of  courts  of  United 
States. 

§  226.     Oath  of  United  States  judges. 

§  227.     Judges  prohibited  from  practicing  law. 

§  228.  Judges  resigning  entitled,  in  certain  cases,  to 
salary  for  life. 

§  229.     Criers  of  the  courts — Attendants  on  jui-ies. 

§  230.     Property  in  hands  of  receiver. 

§  231.  That  every  receiver  may  be  sued  without 
previous  leave  of  court. 

§  232.     Issue  of  search  warrants. 

§  233.     Warrant  of  search  to  custom  officers. 

§  234.    WaiTant  to  revenue  officers. 

§  235.     Power  to  issue  writs. 

§  236.     Mandamus  against  common  carrier. 

§  237.     Writs  of  ne  exeat. 

§  238.     Temporary  restraining  orders. 

§  239.     Injunctions. 

§  240.  Injunction  to  stay  proceedings  in  State 
courts. 

§  241.     Laws  of  the  States,  niles  of  decision. 

§  242.  Proceedings,  civil  and  criminal,  in  vindica- 
tion of  civil  rights. 

§  243.     When  suits  in  equity  may  be  maintained. 

§  244.  Power  to  order  production  of  books  and  writ- 
ings in  actions  at  law. 

§  245.     Power  to  impose  oaths  and  punish  contempts. 

§  246.  Occupants  of  lands— Remedies  for  improve- 
ments. 


§  225     COMMON  TO  MORE  THAN  ONE  COURT.       7S4 

§  247.     New  trials. 

§  248.  Power  to  hold  to  security  for  the  peace  and 
good  behavior. 

§  24U.  Power  to  enforce  awards  of  foreign  consuls, 
etc.,  in  certain  cases. 

§  250.  Proceedings  to  enjoin  compti-oller  of  the  cur- 
rency. 

§  2.51.     Suits,  where  brought 

§  2.52.     Parties  may  plead  their  OAvn  causes. 

§  253.     Officers  forbidden  to  practice  as  attorneys. 

§  254.     Penalty. 

§  255.     Final   record— How   made. 

§225  (711).  Exclusive  jurisdiction  of  courts 
of  United  States. — The  jurisdiction  vested  in  the 
courts  of  the  United  States,  in  the  cases  and  pro- 
ceedings hereinafter  mentioned,  shall  be  exclusive 
of  the  courts  of  the  several  States — 

First.  Of  all  crimes  and  offenses  cognizable  un- 
der the  authority  of  the  United  States. 

Second.  Of  all  suits  for  penalties  and  for- 
feitures incurred  under  the  laws  of  the  United 
States. 

Third.  Of  all  civil  causes  of  admiralty  and  mar- 
itime jurisdiction;  saving  to  suitors,  in  all  cases, 
the  right  of  a  common-law  remedy,  where  the  com- 
mon law  is  competent  to  give  it. 

Fourth.  Of  all  seizures  under  the  laws  of  the 
United  States,  on  land  or  on  waters  not  within  ad- 
miralty and  maritime  jurisdiction. 

Fifth.  Of  all  cases  arising  under  the  patent- 
right  or  copyright  laws  of  the  United  States. 

Sixth.  Of  all  matters  and  proceedings  in  bank- 
ruptcy. 


785       COMMON  TO  MORE  THAN  ONE  COURT.    §  226 

Seventh.  Of  all  controversies  of  a  civil  nature, 
where  a  State  is  a  party,  except  between  a  State 
and  its  citizens,  or  between  a  State  and  citizens  of 
other  States,  or  aliens.     (Eev.  Stats,  sec.  711.) 

Note.— By  the  statutes  of  the  United  States,  Fed- 
eral courts  have  jui'isdiction,  exclusive  of  the  courts 
of  the  several  States,  of  "all  crimes  and  offenses 
cognizable  under  the  authority  of  the  United  States." 
(Rev.  Stats.,  sec.  711,  cl.  1;  Cross  v.  State.  132  U.  S. 
132;  Thomas  v.  Loney,  134  U.  S.  372.)  Section  711  de- 
fines the  cases  in  which  "the  jurisdiction  vested  in 
the  courts  of  the  United  States"  shall  be  "exclusive 
of  the  courts  of  the  several  States,"  and  among  such 
are  "all  suits  for  penalties  and  forfeitures  incurred 
under  the  laws  of  the  United  States."  (First  Nat. 
Bank  of  Charlotte  v.  Morgan,  132  U.  S.  141.)  The 
criminal  jurisdiction  of  the  Federal  courts  does  not 
extend  to  the  great  lakes  and  their  connecting  wa- 
ters. (Ex  parte  Byers,  32  Fed.  Rep.  404.)  The  com- 
mon-law rule  that  qui  tarn  actions  on  penal  statutes 
do  not  survive  prevails  in  the  Federal  courts  as  to 
actions  on  penal  statutes  of  the  United  States,  even 
in  States  where  the  statutes  of  the  State  allow  suits 
on  State  penal  statutes  after  the  death  of  the  of- 
fender. (Schreiber  v,  Sharpless,  110  U.  S.  76.)  A 
Federal  court  does  not,  by  virtue  of  an  attachment 
levy,  draw  to  itself  the  question  of  the  title  of  the 
attached  property,  so  as  to  prevent  the  State  courts 
from  deciding  such  question  in  a  suit  subsequently 
brought.  (Montgomery  v.  McDermott,  87  Fed.  Rep. 
374.) 

§  226  (712).     Oath  of  United  States  judges.— 

The  justices  of  the  supreme  court,  the  circuit 
judges,  and  the  district  judges,  hereafter  appoint- 
ed, shall  take  the  following  oath  before  they  pro- 


§§  227-228  COMMON  to  more  than  one  coubt.        780 

ceed  to  perform  the  duties  of  their  respective  of- 
fices: "I, ,  do  solemnly,  swear  (or  affirm) 

that  I  will  administer  justice  without  respect  to 
persons,  and  do  equal  right  to  the  poor  and  to  the 
rich,  and  that  1  will  faithfully  and  impartially  dis- 
charge and  perform  all  the  duties  incumhent  on 

me  as ,  according  to  the  best  of  my  abilities 

and  understanding,  agreeably  to  the  Constitution 
and  law^s  of  the  United  States:  So  help  me  God." 
(Kev.  Stats,  sec.  713.) 

§  227  (713).  Judges  prohibited  from  practic- 
ing law. — It  sliall  not  be  lawful  for  any  judge  ap- 
pointed under  the  authority  of  the  United  States 
to  exercise  the  profession  or  employment  of  coun- 
sel or  attorney,  or  to  be  engaged  in  the  practice  of 
the  law.  And  any  person  offending  against  the 
prohibition  of  this  section  shall  be  deemed  guilty 
of  a  high  misdemeanor.     (Rev.  Stats,  sec.  713.) 

Note.— .Tudges  are  not  liable  in  civil  suits  for  their 
judicial  acts.  (Pliilbrook  v.  Newman,  85  Fed.  Rep. 
l?,i).)  It  is  no  objection  to  a  judge  trying  a  case  that 
before  his  appointment  he  was  attorney  in  other 
matters  for  one  of  the  parties.  (Can-  v.  Fife,  156 
U.   S.  494.) 

^  228  (714).  Judges  resigning  entitled,  in  cer- 
tain cases,  to  salary  for  life. — Wlien  any  judge  of 
any  court  of  the  United  States  resigns  his  office, 
after  having  held  his  commission  as  such  at  least 
ten  years,  and  having  attained  the  age  of  seventy 
years,  he  shall,  during  the  residue  of  his  natural 
life,  receive  the  same  salary  which  was  by  law  pay- 
able to  him  at  the  time  of  his  resignation. 


787  COMMON    TO    MORE    THAN    ONE   COURT.  §§  229-230 

§  229  (715).  Criers  of  the  courts — Attendants 
on  juries. — The  circuit  and  district  courts  may  ap- 
point criers  for  their  courts,  to  be  allowed  the  sum 
of  two  dollars  per  day,  and  the  marshals  may  ap- 
point such  a  number  of  persons,  not  exceeding  five, 
as  the  judges  of  their  respective  courts  may  deter- 
mine, to  attend  upon  the  grand  and  other  juries, 
and  for  other  necessary  purposes,  who  shall  be  al- 
lowed for  their  services  the  sum  of  two  dollars  per 
day,  to  be  paid  by  and  included  in  the  accounts  of 
the  marshal,  out  of  any  money  of  the  United  States 
in  his  hands.  Such  compensation  shall  be  paid 
only  for  actual  attendance,  and  when  both  courts 
are  in  session  at  the  same  time,  only  for  attendance 
on  one  court.     (Eev.  Stats,  sec.  715.) 

§  229  a.  Criers,  when  deemed  in  attendance; 
Vacation. — That  all  persons  employed  under  sec- 
tion seven  hundred  and  fifteen  of  the  revised  stat- 
utes shall  be  deemed  in  actual  attendance  when 
they  attend  upon  the  orders  of  the  courts;  no  such 
person  shall  be  employed  during  vacation.  (30  U. 
S.  Stats.  58.) 

§  230.     Property     in     hands     of     receiver. — • 

Whenever  in  any  cause  pending  in  any  court  of  the 
United  States  there  shall  be  a  receiver  or  manager 
in  possession  of  any  property,  such  receiver  or  man- 
ager shall  manage  and  operate  such  property  ac- 
cording to  the  requirements  of  the  valid  laws  of 
the  State  in  which  such  property  shall  be  situated, 
ih  the  same  manner  that  the  owner  or  possessor 
thereof  would  be  bound  to  do  if  in  possession  there- 


§  230  COMMON    TO    MORE    THAN    ONE   COURT.  788 

of.  Any  receiver  or  manager  who  shall  willfully 
violate  the  provisions  of  this  section  shall  be 
deemed  guilty  of  a  misdemeanor,  and  shall,  on  con- 
viction thereof,  be  punished  by  a  fine  not  exceed- 
ing three  thousand  dollars,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments, 
in  the  discretion  of  the  court.  (25  U.  S.  Stats. 
433,  sec.  2.) 

Property  in  possession  of  receiver. — Whore  the 
property  in  litigation  is  in  the  possession  of  a  receiver 
of  the  circuit  court,  such  possession  draws  to  it  the 
right  to  decide  conflicting  claims  to  its  ultimate  pos- 
session and  control.  (Morgan's  La.  &  Tex.  R.  &  S. 
Co.  V.  Texas  Cent.  R.  Co.,  137  U.  S.  171;  Milwaukee 
etc.  R.  Co.  V.  Soutter,  2  Wall.  510;  People's  Bank  v. 
Calhoun,  102  U.  S.  256;  Krippendorf  v.  Hyde,  110 
U.  S.  27G.)  A  receiver  appointed  befoi'e  the  removal 
remains  in  possession  until  he  is  removed.  (Hinck- 
ley V.  Itailroad  Co.,  100  U.  S.  153.)  An  attachment 
suit,  being  the  flrst  levied,  was  removed  to  the  Fed- 
eral coiu't,  the  State  court  directing  the  receiver  to 
retain  so  much  of  the  fund  as  belonged  to  that  suit 
and  pay  the  balance  into  the  registry  of  the  State 
court,  which  was  done.  On  the  failure  of  the  re- 
moved attachment  in  the  Federal  court,  the  fund 
would  not  be  returned  to  the  State  court  to  answer 
subsequent  attachments  not  removed;  but  by  the  re- 
ceiver should  be  paid  under  the  order  of  the  State 
court.  (Mack  v.  .Tones,  31  Fed.  Rep.  189.)  A  receiver 
will  be  protected  in  the  possession  and  use  of  fran- 
chises and  property  committed  to  him.  (Fidelity  T. 
&  Safety  Vault  Co.  v.  Mobile  St.  Ry.  Co.,  53  Fed. 
Rep.  G87;  Sullivan  v.  Colby,  34  U.  S.  App.  422;  71  Fed. 
Rep.  4G0.)  Primary  and  ancillary  receivers.  (Wheel- 
ing Bridge  &  T.  Ry.  Co.  v.  Cochran.  85  Fed.   Rep. 


789       COMMON  TO  MORE  THAN  ONE  COURT.    §  230 

500;  Bayne  v.  Brewer  Pottery  Co.,  82  Fed.  Rep.  391; 
Ames  V.  Union  Pac.  Ry.  Co.,  60  Fe<i.  Rep.  906;  Chat- 
tanooga T.  R.  Co.  V.  Fulton,  69  Fed.  Rep.  273.)  Ex- 
traterritorial jurisdiction  of  receiver.  (See  Rogers  y. 
Riley,  80  P^ed.  Rep.  759.)  When  receiver  should  be 
allowed  to  sell  property.  (In  I'e  Hall  &  Stilsou  Co., 
73  Fed.  Rep.  527.)  Property  in  hands  of  receiver  is 
liable  to  taxation  the  same  as  other  property,  but  if 
a  receiver  believes  the  tax  illegal  he  may  apply  to  the 
court  appointing  him  for  protection.  (Ex  parte  Cham- 
berlain, 55  Fed.  Rep.  704.)  A  Federal  court  in  one 
State  cannot  reach  propex'ty  in  another  State  by 
means  of  a  receiver.  (Kittel  v.  Augusta  T.  &  G. 
Ry.  Co.,  78  Fed.  Rep.  855.)  The  decision  of  an  ap- 
pellate court  upon  a  question  of  business  policy  with 
reference  to  property  in  hands  of  its  receiver  should 
not  be  disturbed.  (Mercantile  Trust  Co.  v.  Farmer's 
Loan  Co.,  49  U.  S.  App.  462;  81  Fed.  Rep.  254.)  As 
to  compensation  of  receivers  and  their  attorneys,  see 
Dillingham  v.  Moran,  00  U.  S.  App.  000;  81  Rep.  Rep. 
759;  American  Loan  &  T.  Co.  v.  South  Atl.  &  O.  Ry. 
Co.,  81  Fed.  Rep.  62;  Maxwell  v.  Wilmington  Dental 
Mfg.  Co.,  82  Fed.  Rep.  214;  Sowles  v.  National  Union 
Bank,  82  Fed.  Rep.  139;  Merchant's  Bank  of  St. 
Joseph  V.  Crysler,  32  U.  S.  App.  187;  67  Fed.  Rep. 
388.)  Receivers  of  an  insolvent  coiporation  repre- 
sent both  the  corporation  and  its  creditors  and  have 
a  right  to  assert  any  defense  to  which  the  creditors, 
in  contradistinction  to  the  corporation,  are  entitled. 
(Hamor  v.  Taylor-Rice  Eng.  Co.,  84  Fed.  Rep.  392.) 
Receiver's  right  to  appeal.  (Bosworth  v.  Terminal 
R.  R.  Assn.,  53  U.  S.  App.  302;  80  Fed.  Rep.  969.) 
The  tiling  of  a  petition  by  a  national  bank  receiver  in 
a  Federal  court  does  not  operate  to  make  him  an 
officer  of  that  court  or  to  place  the  assets  of  the  bank 
within  the  control  of  the  court.  (Ex  parte  Chetwood, 
165  U.  S.  443.) 


§§  230a-231  common  to  more  than  oxe  court.     790 

§  230  a.  Persons  disqualified  for  receivers. — 
That  no  marshal  or  deputy  marshal,  attorney  or 
assistant  attorney  of  any  district,  jury  commis- 
sioner, clerk  of  marshal,  no  bailiff,  crier,  juror,  jan- 
itor of  any  government  building,  nor  any  civil  or 
military  employee  of  the  government,  except  as  in 
this  act  provided  (clerk  or  deputy  clerk  of  court 
with  consent  of  attorney  general)  and  no  clerk  or 
employee  of  any  United  States  justice  or  judge 
shall  have,  hold  or  exercise  the  duties  of  the  United 
States  commissioner.  And  it  shall  not  be  lawful 
to  appoint  any  of  the  officers  named  in  this  section 
receiver  or  receivers  in  any  case  or  cases  now  pend- 
ing or  that  may  be  hereafter  brought  in  the  courts 
of  the  United  States.     (29  U.  S.  Stats.  184.) 

^  231.  That  every  receiver  may  be  sued 
without  previous  leave  of  court. — Every  receivcM* 
or  manager  of  any  property  appointed  by  any  court 
of  the  United  States  may  be  sued  in  respect  of  any 
act  or  transaction  of  his  in  carrying  on  the  business 
connected  with  such  property,  without  the  previ- 
ous leave  of  the  court  in  which  such  receiver  or 
manager  was  appointed;  but  such  suit  shall  be  sub- 
ject to  the  general  equity  jurisdiction  of  the  court 
in  which  such  receiver  or  manager  was  appointed, 
so  far  as  the  same  shall  be  necessary  to  the  ends  of 
justice.     (25  U.  S.  Stats.  433,  sec.  3.) 

Suits  against  receivers.— Under  soction  3  of  the  act 
of  MMieli  'J,  IcSST.  a  jiKlj^ment  renderod  in  an  action 
in  a  State  conrt  against  a.i'ecoiver  appointed  in  an 
action  in  a  Federal  circuit  court  instituted  prior  to 


791  COMMON    TO    MORE    THAN   ONE   COURT.  §  231 

the  passage  of  the  act,  and  which  suit  in  the  State 
court  had  been  brought  without  the  consent  of  the 
court  appointing  such  receiver,  was  not  conclusive  as 
against  him.  but  was  subject  to  the  equity  jurisdic- 
tion of  the  court  appointing  him.  (Missouri  Pac.  R. 
Co.  V.  Texas  Pac.  R.  Co.,  41  Fed.  Rep.  311.)  The 
statute  permitting  suits  against  a  receiver  without 
leave  of  court  does  not  apply  to  a  suit  by  a  stock- 
holder of  the  corporation  against  tne  receiver  and 
others  upon  a  cause  of  action  which  accrued  to  the 
corporation  before  the  receiver  was  appointed. 
(Swope  V.  Villard,  61  P"'ed.  Rep.  417.)  Garnishment 
proceedings  are  not  suits  against  a  receiver  for  "any 
act  or  transaction  of  his"  within  the  meaning  of  this 
section.  (Central  Trust  Co.  v.  Chattanooga  R.  &  C. 
R.  Co.,  (>8  Fed.  Rep.  QS5.)  A  suit  against  a  receiver 
appointed  by  a  Federal  court,  brought  without  leave, 
is  removable  since  it  involves  the  construction  of  the 
pi'ovisions  of  the  amendatory  act  of  March  3,  1887, 
permitting  a  suit  in  a  State  court  against  a  receiver 
appointed  by  a  Federal  court.  (Evans  v.  Dillingham, 
43  Fed.  Rep.  177.)  A  suit  to  recover  property  ac- 
quired by  the  removing  defendant  as  receiver  of  a 
national  bank  by  authority  of  the  laws  of  the  United 
States  arises  under  the  laws  of  the  United  States 
within  the  meaning  of  the  Removal  Act  of  August 
13,  1888.  (Sowles  v.  Witters,  43  Fed.  Rep.  700.)  An 
action  between  a  receiver  of  an  insolvent  national 
bank  and  a  depositor,  involving  only  the  right  of  set- 
off of  deposits  against  notes  due  by  the  depositor, 
does  not  present  a  Federal  question  under  Revised 
Statutes,  sec.  5342.  (Tehan  v.  First  Nat.  Bank,  89 
Fed.  Rep.  577.)  Where  receivers  of  a  railroad  run- 
ning through  Arkansas,  who  were  appointed  in  that 
State,  had  removed  into  another  State,  held,  that  the 
court  would  authorize  them  to  be  sued  in  the  State 
courts  of  Arkansas  by  service  on  their  station  agents 


§  231  COMMON    TO    MORE    THAN   ONE   COURT.  792 

or  clerks  therein.  (Central  Trust  Co.  of  N.  Y.  v.  St. 
Louis  A.  &  T.  R.  Co.,  40  Fed.  Rep.  426.)  The  per- 
mission by  statute  to  sue  a  Federal  receiver  extends 
to  any  court  of  competent  jurisdiction  not  merely  by 
Federal  court.  (Central  Trust  Co.  v.  East  Tennessee 
V.  &  G.  Ry.  Co..  50  Fed.  Rep.  523;  Texas  &  Pac.  R. 
R.  Co.  V.  Johnson,  151  U.  S.  Si.)  Where  property  is 
in  tlie  liands  of  a  receiver  appointed  by  a  court,  an 
independent  suit  to  foreclose  a  mortgage  cannot  be 
maintained,  even  in  the  same  court.  (American  Loan 
&  T.  Co.  V.  Central  Vermont  R.  Co..  86  Fed.  Rep. 
31)0.)  When  the  jurisdiction  of  the  court  in  which 
the  receiver  is  sued  is  conferred  by  Federal  laws,  and 
when  such  jurisdiction  is  exclusive,  consent  of  the 
appointing  court  is  not  necessary  in  order  to  sue  the 
receiver.  (Hupfeld  v.  Automaton  Piano  Co.,  06  Fed. 
Rep.  788.)  A  receiver  of  a  State  court  cannot  be 
sued  without  the  consent  of  the  appointing  court. 
(Porter  v.  Sabin.  149  V.  S.  473.)  The  right  of  a  re- 
ceiver to  be  sued  in  a  certain  district  is  a  personal 
privilege  which  may  be  waived  by  an  appearance 
and  answer.  (Texas  &,  Pac.  Ry.  Co.  v.  Cox,  145  U.  S. 
593.)  The  statute  allowing  receivers  of  Federal 
courts  to  be  sued  without  leave  applies  to  a  receiver 
appointed  by  a  Territorial  court  for  a  corpoi'ation 
created  by  act  of  Congress.  (Wheeler  v.  Smith,  81 
Fed.  Rep.  319.)  A  receiver  may  not  be  sued  without 
leave  of  the  court  appointing  him  for  alleged  wrong- 
ful acts  committed  in  the  operation  of  the  road  be- 
fore he  became  the  receiver.  (.Tones  v.  Schlapback, 
81  Fed.  Rep.  274.)  The  right  to  sue  a  receiver  with- 
out leave  of  court  does  not  extend  to  a  suit  to  estab- 
lish a  right  to  the  property  placed  in  his  custody 
adverse  to  his  right  thereto.  (J.  I.  Oase  Plow  Works 
V.  Finks,  81  Fed.  Rep.  529.)  A  judgment  rendered 
in  a  State  court  against  a  I'ederal  receiver  is  con- 
clusive as  to  the  existence  and  amount  of  plaintiff's 


793       COMMON  TO  MORE  THAN  ONE  COURT.     §  232 

claim,  but  tlie  time  and  manner  of  payment  are  to  be 
controlled  by  the  appointing  court.  (Dillingham  v. 
Hawk,  23  U.  S.  App.  273;  60  Fed.  Rep.  494.) 

§  232.  Issue  of  search  warrants  in  certain 
cases. — The  several  Judges  of  courts  established 
under  the  laws  of  the  United  States  and  the  com- 
missioners of  such  courts  may,  upon  proper  oath  or 
affirmation,  within  their  respective  Jurisdictions, 
issue  a  search-warrant  authorizing  any  marshal  of 
the  United  States,  or  any  other  person  specially 
mentioned  in  such  warrant,  to  enter  any  house, 
store,  building,  boat  or  other  place  named  in  such 
warrant,  in  the  day-time  only,  in  which  there  shall 
appear  probable  cause  for  believing  that  the  manu- 
facture of  counterfeit  money,  or  the  concealment 
of  counterfeit  money,  or  the  manufacture  or  con- 
cealment of  counterfeit  obligations  or  coins  of  the 
United  States  or  of  any  foreign  government,  or 
the  manufacture  or  concealment  of  dies,  hubs, 
molds,  plates,  or  other  things  fitted  or  intended  to 
be  used  for  the  manufacture  of  counterfeit  money, 
coins  or  obligations  of  the  United  States 
or  of  any  foreign  government,  or  of  any 
bank  doing  business  under  the  authority  of  the 
United  States  or  of  any  State  or  Territory  thereof, 
or  of  any  bank  doing  business  under  the  authority 
of  any  foreign  government  or  of  any  political  divis- 
ion of  any  foreign  government,  is  being  carried  on 
or  practiced,  and  there  search  for  any  sach  coun- 
terfeit money,  coins,  dies,  hubs,  molds,  plates,  and 
other  things,  and  for  any  such  obligations,  and  if 
any  such  be  found,  to  seize  and  secure  the  same, 

Fed.  PR  c— 67. 


§g  233-234  COMMON  to  more  than  one  coukt.        794 

and  to  make  return  thereof  to  the  proper  authority; 
and  all  such  counterfeit  money,  coins,  dies,  hubs, 
molds,  plates,  and  other  things,  and  all  such  coun- 
terfeit obligations  so  seized,  shall  be  forfeited  to 
the  United  States.  [Approved  February  10, 
1891.]     (26  V.  S.  Stats.  743.) 

§  233.  "Warrant  to  search  to  custom  officers. — 
If  any  collector,  naval  officer,  surveyor,  or  other 
person  specially  appointed  by  either  of  them,  or 
inspector,  shall  have  cause  to  suspect  a  conceal- 
ment of  any  merchandise  in  any  particular  dwell- 
ing-house, store,  building,  or  other  place,  they,  or 
either  of  them,  upon  proper  application  on  oath 
to  any  justice  of  the  peace,  shall  be  entitled  to  a 
warrant  to  enter  such  house,  store,  or  other  place, 
in  the  day-time  only,  and  there  to  search  for  such 
merchandise,  and  i,f  any  shall  be  found  to  seize  and 
secure  the  same  for  trial;  and  all  such  merchandise, 
on  which  the  duties  shall  not  have  been  paid  or 
secured  to  be  paid,  shall  be  forfeited.  (Rev.  Stats, 
sec.  30G6.) 

§  234.     Warrant  may  issue  to  internal  revenue 

officer. — The  several  judges  of  the  circuit  and  dis- 
trict courts  of  the  United  States  and  commissioners 
of  the  circuit  courts  ma^'',  within  their  respective 
jurisdictions,  issue  a  search-warrant,  authorizing 
any  internal  revenue  officer  to  search  any  premises 
within  the  same,  if  such  officer  makes  oath  in  writ- 
ing that  he  has  reason  to  believe,  and  does  believe, 
that  a  fraud  upon  the  revenue  has  been  or  is  being 


795       COMMON  TO  MORE  THAN  ONE  COURT.     §  235 

committed  upon  or  by  the  use  of  the  said  premises. 
(Eev.  Stats,  sec.  34G2.) 

§235,  (716).  Power  to  issue  writs. — The  su- 
preme court  and  the  circuit  and  district  courts 
shall  have  power  to  issue  writs  of  scire  facias. 
They  shall  also  have  power  to  issue  all  writs  not 
specifically  provided  for  by  statute,  which  may  be 
necessary  for  the  exercise  of  their  respective  juris- 
dictions, and  agreeable  to  the  usages  and  principles 
of  law.     (Eev.  Stats,  sec.  716.) 

Writ  of  certiorari.— Russell  v.  Thomas,  31  Leg.  Int, 
189;  Ex  parte  Van  Orden,  3  Blatchf.  166;  Fed.  Cas. 
No.  16S70;  Patterson  v.  U.  S.,  2  Wheat.  221;  Ex  parte 
Martin.  5  Blatchf.  303;  Fed.  Cas.  No.  91.51;  Ex  parte 
Stnpp.  12  Blatchf.  501;  Fed.  Cas.  No.  13.563;  Ex  parte 
Bollman,  4  Cranch,  75;  Ex  parte  Buford,  3  Cranch, 
447;  U.  S.  V.  Young,  94  U.  S.  258;  Ex  parte  Vallan- 
digham,  1  Wall.  243;  U.  S.  v.  Adams,  9  Wall.  661. 

Scire  facias. — Oral  evidence  on  scire  facias.  (Hunt 
V.  United  States,  19  U.  S.  App.  683;  61  Fed.  Rep.  795.) 

Capias  ad  satisfaciendum. — Right  not  limited  by 
State  statute.  (United  States  v.  Arnold,  34  U.  S.  App. 
177;  69  Fed.  Rep.  987.) 

Writ  of  mandamus.— Wheeling  v.  Mayor,  1 
Hughes,  90;  Graham  v.  Norton,  15  Wall.  427;  U.  S. 
V.  New  Orleans,  98  U.  S.  381;  Riggs  v.  Johnson,  6 
Wall.  166;  Ex  parte  Holman,  28  Iowa.  88;  Supeiwisors 
V.  U.  S.,  4  Wall.  435;  Galena  v.  Amy,  24  How.  376; 
Com.  V.  Sellew,  99  U.  S.  624:  Smith  v.  Allyn,  1  Paine, 
453;  Fed.  Cas.  No.  13000;  The  New  England,  3  Sum. 
495;  Fed.  Cas.  No.  10151;  Ex  parte  Hoyt,  13  Peters» 
279;  The  Enterprise,  3  Wall.  .Jr.  58;  Fed.  Cas.  No. 
4500.)     To  State  courts.     (Ladd  v.  Tudor,  3  Wood  & 


§  235  COMMON   TO   MOBE   THAN  ONE   COURT.  796 

M.  325;  Fed.  Cas.  No.  7975;  Fisk  v.  Union  Pac.  R.  R. 
Co.,  6  Blatchf.  3G2;  Fed.  Cas.  No.  4S27;  Hough  v. 
West.  Trans.  Co.,  1  Biss.  42.5;  Fed.  Cas.  No.  6724; 
Rosenbaum  v.  Bauer,  120  U.  S.  450;  Labette  County 
V.  United  States,  112  U.  S.  217;  In  re  Slierman,  124 
U.  S.  364;  United  States  v.  Seaboard  Ry.  Co.  of  Ala- 
bama, 85  Fed.  Rep.  935;  Deuel  Co.  v.  First  Nat.  Bank, 
U.  S.  App.;  86  Fed.  Rep.  264;  74  Fed.  Rep.  373.) 

Writ  of  execution. — Wayman  v.  Southard,  10 
Wheat.  1;  Bank  of  U.  S.  v.  Halstead,  10  Wheat,  51. 

Writ  of  attachment.— Voss  v.  Luke.  1  Cranch  C.  C. 
331;  Fed.  Cas.  No.  17014;  U.  S.  v.  AVilliams,  4  Cranch 
a  C.  372;  Fed.  Cas.  No.  16712;  Montgomery  v.  Mc- 
Dermott,  83  Fed.  Rep.  576. 

Writ  of  assistance. — Terrell  v.  Allison,  21  Wall. 
289.  It  should  not  issue  against  one  not  a  party  to 
the  suit.  (Comer  v.  Felton,  22  U.  S.  App.  313;  61 
Fed.   Rep.   731.) 

Writ  of  inhibition. — Penhallow  v.  Doane,  3  Dall. 
54. 

Writ  of  injunction. — An  injunction  will  not  be 
granted  by  a  United  States  court  to  interfere  with  the 
possession,  control,  or  disposition  of  property  in  the 
hands  of  the  State  court  (Hutchinson  v.  Green,  2  Mc- 
Crary,  471);  so  if  the  sheriff  has  possession  of  prop- 
erty under  process  of  the  State  court  he  cannot  be 
displaced  by  process  from  the  Federal  court  (Watson 
V.  .Tones,  13  Wall.  679);  nor  can  a  Federal  court  in- 
terfere ■with  property  in  the  hands  of  a  receiver  ap- 
pointed by  the  State  court  (Mercantile  Trust  Co.  v. 
Lamoille  Val.  R.  R.  Co.,  10  Blatchf.  324;  Fed.  Cas. 
No.  9^.'^2);  nor  can  a  party  be  restrained  from  taking 
possession  of  property  which  a  judgment  of  the 
State  court  requires  to  be  delivered  to  him.     (Watson 


797  COMMOX    TO    MORE    THAN    ONE    COURT.  g§  236    237 

r.  Jones,  13  Wall.  679.  See  Claybrook  v.  Oweusboro, 
16  Fed.  Rep.  303.)  A  court  of  equity  may  enjoin  an 
act  to  protect  property  rights,  even  tliough  the  act 
sought  to  be  enjoined  is  also  a  violation  of  the  crim- 
inal law.  (Nashville  C.  ik  St.  L.  Ry.  Co.  v.  McCon- 
uell,  82  Fed.  Rep.  tw.)  It  is  not  a  fatal  objection 
that  the  use  of  the  writ  of  injunction  for  the  par- 
ticular puiTJOse  for  which  it  is  sought  is  novel.  (Nash- 
ville C.  &  St.  L.  Ry.  Co.  V.  McConnell,  82  Fed.  Rep. 
65.) 

Writ  of  subpoena.— A  subpoena  duces  tecum  can- 
not issue  to  a  witness  not  a  party  to  a  suit  to  com- 
pel him  to  bring  before, the  court  patterns  for  a  stove, 
(In  re  Shepard,  18  Blatchf.  226;  3  Fed.  Rep.  12.) 

§  236.     Mandamus  against  common  carrier. — 

The  United  States  courts  shall  have  jurisdiction 
upon  the  relation  of  any  person  or  persons,  firm  or 
corporation,  to  issue  a  writ  or  writs  of  mandamus 
against  a  common  carrier,  commanding  such  car- 
rier to  move  and  transport  traffic,  or  to  furnish  cars 
or  other  facilities  for  transportation  for  the  party 
applying  for  the  writ,  under  the  Act  of  March  2, 
1889,  amendatory  of  an  act  to  regulate  commerce, 
approved  February  4,  1887.  (25  U.  S.  Stats.  862, 
sec.  19.)  Circuit  courts  have  jurisdiction  to  com- 
pel common  carriers,  under  the  inter-State  com- 
merce act,  to  publish  rates  of  fares  and  freights. 
(24  U.  S.  Stats.  382.) 

§  237  (717).     Writ    of   ne  exeat.— Writs  of   ne 

exeat  may  be  granted  by  any  justice  of  the  supreme 
court  in  cases  where  they  might  be  granted  by  the 
supreme  court;  and  by  any  circuit  justice  or  circuit 


§  238  COMMON   TO   MOEE   THAN   ONE   COURT.  798 

judge  in  cases  where  they  might  be  granted  by  the 
circuit  court  of  which  he  is  a  judge.  But  no  writ 
of  ne  exeat  shall  be  granted  unless  a  suit  in  equity 
is  commenced,  and  satisfactory  proof  is  made  to 
the  court  or  judge  granting  the  same  that  the  de- 
fendant designs  quickly  to  depart  from  the  United 
States.     (Eev.  Stats,  sec.  717.)    ■ 

Writ  of  ne  exeat.— The  writ  cannot  be  issued  un- 
less a  pai-ty  intends  to  leave  the  United  States. 
(LoTvenstein  v.  Biernbaum,  8  Week.  Notes.  163; 
Fed.  Cas.  No.  8461a;  see  Patterson  v.  McLaughlin,  1 
Cl-anch  G.  C.  3.^2;  Fed.  Cas.  No.  10828;  Union  Mutual 
Ins.  Co.  V.  Kellogg,  5  Week.  Notes,  477;  Fed.  Cas.  No. 
14373.)  To  obtain  the  writ,  the  party  must  SAvear 
positively  to  a  debt  or  to  a  belief  that  a  cei-tain  bal- 
ance is  due  him.  (Gernon  v.  Boecaline,  2  Wash.  C. 
G.  130;  Fed.  Oas.  No.  5677.)  It  must  be  an  equitable 
debt  or  pecuniary  claim,  and  be  certain,  or  capable 
of  reduction  to  certainty.  (Graham  v.  Stucken,  4 
Blatchf.  50;  Fed.  Cas.  No.  5677.)  So  a  claim  for  thrf 
return  of  proi)erty  is  not  sufficient.  (Graham  v. 
Stucken,  4  Blatchf.  50:  Fed.  Cas.  No.  5677.)  A  dis- 
trict judge  has  no  power  to  award  the  writ.  (Gernon 
v.  BoecaJine,  2  Wash.  C.  G.  130;  Fed.  Cas.  No.  5367.) 
The  question  of  the  propriety  of  issuing  a  writ  of 
ne  exeat  cannot  be  raised  by  demurrer.  (Shainwald 
V.  Lewis,  69  Fed.  Rep.  487.) 

§  238  (718).  Temporary  restraining  orders. — 
Whenever  notice  is  given  of  a  motion  for  an  in- 
junction out  of  a  circuit  or  district  court,  the  court 
or  judge  thereof  may,  if  there  appears  to  be  danger 
of  irreparable  injury  from  delay,  grant  an  order 
restraining  the  act  sought  to  be.  enjoined  until  the 
decision  upon  the  motion;  and  such  order  may  be 


799       COMMON  TO  MORE  THAN  ONE  COURT.     §  238 

granted  with  or  without  security,  in  the  discretion 
of  the  court  or  judge.     (Eev.  Stats,  sec.  718.) 

Temporary  injunctions.— An  injunction  may  be 
grantee!  on  motion  witliout  previous  notice  to  the 
adrerse  party  (Yuengling  v.  Johnson,  1  Huglies,  607; 
Fed.  Cas.  No.  18195);  but  the  court  may  in  its  dis- 
cretion require  notice  to  be  given  (Iving  v.  Hughes, 
7  Am.  Law  Reg.,  N.  S.,  209;  Fed.  Cas.  No.  7076;  In  re 
Wallace,  1  DeadJ^  433;  Fed.  Cas.  No.  17094;  In  re 
Muller,  1  Deady,  513;  Fed.  Cas.  No.  9912;  In  re  Carl- 
ton, 1  Deady,  292;  Fed.  Cas.  No.  4769;  In  re  Smith,  1 
N.  y.  Leg.  Obs.  231;  Fed.  Cas.  No.  32.j4);  and  what  is 
reasonable  notice  depends  on  the  circumstances  of 
the  case.  (New  Yorli  v.  Connecticut,  4  Dall.  1.)  It 
should  not  be  granted  without  notice,  whether  grant- 
ed by  the  court  or  a  judge  thereof.  (New  York  v. 
Connecticut,  4  Dall.  1;  Wynn  v.  Wilson,  Hemp.  698; 
Fed.  Cas.  No.  18116;  Lawrence  v.  Bowman,  1  McAll. 
419;  Fed.  Cas.  No.  8134;  Perry  v.  Parker,  1  Wood  & 
M.  280;  Fed.  Cas.  No.  11010.)  If  a  party  voluntarily 
appeai-s,  it  will  be  presumed  that  he  had  regular  and 
timely  notice.  (Marsh  v.  Bennett,  5  McLean,  117; 
Fed.  Cas.  No.  9110;  Bradley  v.  Reed,  12  Pittsb.  L.  J. 
65;  Fed.  Cas.  No.  1785.)  Interlocutory  injunctions 
may  be  granted  to  restrain  the  mining  of  ores  pend- 
ing an  action  at  law.  (St.  Louis  M.  &  M.  Co.  v. 
Montana  M.  Co.,  58  Fed.  Rep.  129.)  The  burden  of 
proof  is  on  defendant  to  show  cause  for  dissolving 
a  temporary  injunction  (Edison  El.  Light  Co.  ^. 
Buckeye  El.  Co.,  59  Fed.  Rep.  691);  a  motion  to  dit- 
solve  should  always,  when  practicable,  be  addressea 
to  the  judge  w^ho  gi-anted  it,  and  in  case  of  his 
death  two  judges  should  hear  the  motion  to  dissolve 
(Westerly  W.  Co.  v.  Westerly,  77  Fed.  Rep.  783.)  A' 
preliminary  injunction  merely  preseiwes  matters  in 
statu  quo,  and  cannot  direct  the  restoration  of  prop- 


§  239    COMMON  TO  MORE  THAN  ONE  COURT.       !S00 

erty  to  its  condition  before  being  disturbed  (Soutli- 
ei-n  Pac.  Ry.  Co.  v.  City  of  Oalilaud,  58  Fed.  Rep. 
50.)  A  tenipoi-ary  injunction  sliould  not  be  granted 
in  a  case  of  new  impression  if  it  would  be  pos.si'ble 
to  effectuate  justice  in  any  otiier  way  (Ladd  v.  Ox- 
nard,  75  Fed.  Rep.  ~0'd.)  It  should  not  be  granted 
except  in  cleai*  cases  of  pressing  necessity  (Amer- 
ican Cereal  Co.  v.  Eli  Pettijohn  C.  Co.,  4G  U.  S.  App. 
188;  76  Fed.  Rep.  372;  Home  Ins.  Co.  v.  Nobles,  63 
Fed.  Rep.  642.)  A  temporai'y  injunction  will  not  be 
granted  on  a  bill  cleai'ly  demurrable  (Ladd  v.  Ox- 
nard,  75  Fed.  Rep.  703.)  On  application  for  prelim- 
inary injunction  where  grave  questions  are  involved, 
the  court  should  not  decide  the  merits  of  the  contro- 
versy; probable  right  and  danger  to  that  right 
should  be  sutiicient  (New  Memphis  Gas  &  L.  Co.  v. 
City  of  Memphis,  72  Fed.  Rep.  952;  City  of  Newton 
V.  Lewis,  49  U.  S.  App.  266;  79  Fed.  Rep.  715.)  A 
mere  temporary  restraining  order  granted  ex  parte 
may  be  dissolved  on  motion  before  answer  filed,  even 
where  the  bill  is  one  for  discovery  (Fen wick  llall 
Co.  V.  Town  of  Old  Saybrook.  66  Fed.  Rep.  389.) 
Public  inconvenience  is  not  to  be  considered  wliere 
a  refusal  of  the  order  would  work  serious  injury  to 
plaintiff  (Westinghouse  Air  Brake  Co.  v.  Burton 
Stock  Car  Co.,  70  Fed.  Rep.  619.)  Whenever  it  is 
manifest  that,  on  the  case  made,  an  injunction  will 
be  granted  on  tinal  hearing,  one  should  be  granted 
preliminarily  in  the  absence  of  special  facts  (Aliing- 
tou  &  C.  Mfg.  Co.  V.  Booth,  45  U.  S.  App.  627;  78 
Fed.  Rep.  878.) 

§  239  (719).  Injunctions. — Writs  of  injunc- 
tion may  be  granted  by  any  justice  of  the  supreme 
court  in  cases  wliere  they  might  be  granted  l)y  the 
supreme  court;  and  by  any  judge  of  a  circuit  court 


801      COMMON  TO  MOKE  THAN  ONE  COURT.    g  239 

in  cases  where  they  might  be  granted  by  such 
court.  But  no  justice  of  the  supreme  court  shall 
hear  or  allow  any  application  for  an  injunction  or 
restraining  order  in  any  cause  pending  in  the  cir- 
cuit to  which  he  is  allotted,  elsewhere  than  within 
such  circuit,  or  at  such  place  outside  of  the  same  as 
the  parties  may  stipula*te  in  writing,  except  when  it 
cannot  be  heard  by  the  circuit  judge  of  the  circuit 
or  the  district  judge  of  the  district.  And  an  in- 
junction shall  not  be  issued  by  a  district  judge  as 
one  of  the  judges  of  the  circuit  court,  in  any  case 
where  a  party  has  had  a  reasonable  time  to  apply  to 
the  circuit  court  for  the  writ;  nor  shall  any  injunc- 
tion so  issued  by  a  district  judge  continue  longer 
than  to  the  circuit  court  next  ensuing,  unless  so 
orrlered  by  the  circuit  court.  (Rev.  Stats,  sec. 
719.) 

Justice  of  supreme  court.— A  justice  of  the  su- 
preme court  may  hear  an  application  outside  the  cir- 
cuit when  from  any  cause  the  parties  cannot  px'esent 
it  to  the  circuit  or  district  .uidge  (Sea.vles  y.  Jnclvsni- 
Tille,  P.  &  M.  R.  E.  Co.,  2  Woods,  621;  Fed.  Cas.  No. 
12586),  or  in  case  of  absence  or  siclvness  of  the  cir- 
cuit and  district  judges  (Searles  v.  Jaclisouville,  P. 
&  M.  E.  E.  Co.,  2  Woods,  621;  Fed.  Oas.  No.  12586); 
and  if  the  allotted  justice  and  the  circuit  and  disti-ict 
judges  are  absent  from  the  district  and  circuit,  the 
writ  may  be  allowed  by  a  justice  allotted  to  another 
circuit.  (United  States  v.  L.  &  P.  Can.  Ct>.,  4  Dill. 
601;  Fed.  Cas.  No.  15633.) 

Circuit  judge.— A  circuit  judge  cannot  issue  the 
writ  at  a  distance  from  tlie  cleric's  ofhce  when  the 
court  is  in  session.  (^Goodyear  Dental  V.  Co.  v.  Fol- 
som,  3  Fed.  Rep.  509.) 


§  240  COMMON    TO    MOKE    THAN   ONE   COURT.  802^ 

District  judge.— The  district  judge,  when  holding 
the  circuit  couit,  may  issue  the  writ  (Goodyear  Den- 
tal V.  Co.  V.  Folsom,  3  Fed.  Rep.  509);  but  he  cannot 
issue  it  beyond  his  jurisdiction  further  than  to  the 
next  term  of  the  circuit  court  (In  re  Dudley,  1  Penn. 
L.  J.  302;  Fed.  Cas.  No.  4114),  when  it  ceases  to  be 
in  force  unless  an  order  is  made  for  its  continuance. 
(Parker  v.  Judges,  12  Wheat.  561;  Gray  v.  Chicago, 
Iowa  &  N.  E.  R.  Co..  1  Woodw.  03;  Fed.  Cas.  No. 
5713);  but  if  the  circuit  court  refuses  to  dissolve  it, 
it  may  be  treated  as  an  order  for  its  continuance. 
(Parker  v.  Judges,  12  Wheat.  5G1.)  A  district  judge 
cannot  sign  a  writ  of  injunction  in  vacation,  when 
the  circuit  court  can  be  applied  to.  (Goodj'^ear  Den- 
tal V.  Co.  V.  Folsom,  3  Fed.  Rep.  509.) 

§  240  (720).  Injunction  to  stay  proceedings 
in  State  courts.-^The  writ  of  injunction  shall  not 
be  granted  by  any  court  of  the  United  States  to 
stay  proceedings  in  any  conrt  of  a  State,  except  in 
cases  where  such  injunction  may  be  authorized  by 
any  law  relating  to  proceedings  in  bankruptcy. 
[See  sec.  5106.]     (Rev.  Stats,  sec.  720.) 

In  general. — This  section  must  be  construed  in 
connection  with  section  716.  (Sharon  v.  Teri'y,  1  L. 
R.  A.  572.)  The  prohibition  in  this  section  against 
injunctions  by  Federal  courts  to  stay  proceedings  in 
a  State  court  except  in  bankruptcy  cases,  is  not  in 
any  part  repealed  or  abrogated  by  U.  S.  Rev.  Stats., 
sec.  1979,  which  Mas  a  part  of  the  Civil  Rights  Bill 
of  1871.     (Hemsley   v.    Myers,   45   Fed.    Rep.   283.) 

Restraining  proceedings  in  State  courts. — This 
section  applies  to  the  restraint  of  suits,  which,  but 
for  the  injunction,  the  State  court  would  have  juris- 
diction over   (In  re  Long  Island   etc.   Trans.   Co.,  5 


803       COMMON  TO  MORE  THAN  ONE  COURT.    §  240 

Fed.  Rep.  G28),  and  only  such  as  are  commenced  in  a 
State  court  before  proceedings  in  the  Federal  court 
have  been  commenced  (Fislc  v.  Union  I'ac.  K.  Co., 
10  Blatchf.  518;  Fed.  Cas.  No.  4830);  for  if  a  suit  be 
commenced  in  the  Federal  court,  subsequent  proceed- 
ings in  a  State  court  may  be  restrained.  (Fisk  v. 
Union  Pac.  R.  Co.,  10  Blatchf.  518;  Fed.  Cas.  No.  4830; 
Lanning  v.  Osborne,  79  Fed.  Rep.  657;  President  of 
Bovvdoin  College  v.  Merritt,  59  Fed.  Rep.  6;  In  re 
Whitelaw,  71  Fed.  Rep.  733.)  It  is  now  thoroughly  set- 
tled that  the  statute  forbidding  the  Federal  courts  to 
enjoin  proceedings  in  a  State  court  aoes  not  apply  to 
proceedings  incidental  to  jurisdiction  properly  acquir- 
ed by  a  Federal  court  for  other  purposes  than  that  of 
enjoining  proceedings  in  a  State  court  (Garner  v. 
Second  Nat.  Bank,  33  U.  S.  App.  91;  67  Fed.  Rep. 
833;  Central  Trust  Co.  v.  St.  Louis  A.  &.  T.  Ry.  Co., 
59  Fed.  Rep.  385;  Terre  Haute  &  G.  R.  Co.  v. 
Peoria  etc.  R.  R.  Co.,  82  Fed.  Rep.  943.)  "Proceed- 
ings" include  all  steps  taken  in  a  suit  from  its  In- 
ception to  linal  process.  (United  States  v.  Collins,  4 
Blatchf.  142;  Fed.  Cas.  No.  14834.)  This  section  is 
an  inhibition  against  staying  a  party  in  the  conduct 
of  the  proceedings  in  a  State  court  as  much  as  an 
inhibition  against  an  injunction,  mandamus,  or  pro- 
hibition directed  to  the  State  court  (Fisk  v.  Union 
Pac.  R.  Co.,  6  Blatchf.  362;  Fed.  Cas.  No.  4827);  and 
its  interpretation  is  restricted  by  sections  six  hun- 
dred and  forty  and  six  hundred  and  forty-six  of  the 
Revised  Statutes  to  cases  where  the  jurisdiction  oi 
the  courts  of  the  United  States  is  originally  invoked 
for  the  purpose  of  staying  proceedings  in  the  State 
courts.  (Perry  t.  Sharpe,  8  Fed.  Rep.  24.)  This  sec- 
tion of  tlie  United  States  Revised  Statutes  prohibits 
Federal  courts  from  issuing  injunctions  to  stay  pro- 
ceedings in  State  courts,  except  in  matters  of  bank- 
ruptcy.    And  where  lands  were  sold  by  order  of  the 


§  240  COMMON    TO    MORE    THAN   ONE   COURT.  804 

banki-uptcy  court,  the  sale  confii-med,  and  the  cbn- 
veyauce  made  by  the  assij?uee,  the  Federal  court  was 
held  to  be  without  ijower  to  enjoiu  a  sale  of  the  same 
land  under  an  order  of  the  State  court.  (Sargent  v. 
Helton,  115  U.  S.  348;  New  York  &  N.  E.  R.  Co.  v. 
Woodruff,  42  Fed.  Rep.  4(>8;  Tiichman  v.  Welch,  42 
Fed.  Rep.  548;  Carpenter  v.  Talbot,  33  Fed.  Rep. 
537;  Chapman  v.  Brewei",  114  U.  S.  158;  Hamilton  v. 
Walsh,  23  Fed.  Rep.  420;  Hunt  v.  Fisher,  29  Fed. 
Rep.  801;  Yick  Wo  v.  Crowley,  26  Fed.  Rep.  207; 
Lauderdale  Co.  v.  Foster,  23  Fed.  Rep.  516;  Mc- 
Whirter  v.  Halsted,  24  Fed.  Rep.  828;  Ex  parte 
Schulenburg,  25  Fed.  Rep.  211;  Weil  v.  Calhoun,  25 
Fed.  Kep.  8ii5;  Wagner  v.  Drake,  31  Fed.  Rep.  851; 
Suess  V.  Noble,  31  Fed.  Rep.  855;  see,  also,  French  v. 
Hay,  22  Wall.  250;  Dietzsch  v.  Huidekoper,  103  U.  S. 
41M:.)  An  entry  upon  lands  by  petitioner  pending 
condemnation  proceedings  in  a  State  court  will  not 
be  enjoined  by  a  Federal  court.  (Dillon  v.  Kansas 
City  S.  B.  R.  Co.,  43  Fed.  Rep.  109.)  A  Federal  court 
is  not  prohibited  by  Rev.  Stats.,  sec.  720,  from  issu- 
ing an  injunction  to  restrain  the  prosecution  in  a 
State  court  of  a  multiplicity  of  threatened  suits 
which  have  not  been  actually  begun  (Texas  &  Pac. 
Ry.  Co.  V.  Kuteman,  13  U.  S.  App.  99;  54  Fed.  Rep. 
547.)  The  prohibition  of  injunctions  against  the 
State  courts  extends  to  all  cases  over  which  such 
courts  fli'st  get  jurisdiction  and  applies  to  the  officers- 
and  parties  in  the  courts  as  well  as  the  courts  them- 
solvos  f^^^hitney  v.  Wilder,  13  U.  S.  App.  180;  54  Fed. 
Rep.  554.) 

A  court  of  the  United  States  cannot  enjoin  pro- 
ceedings in  a  State  court.  (Diggs  v.  Wolcott,  4 
Cranch,  179;  Rogers  v.  City  of  Cincinnati,  5  Mc- 
Lean, 337;  Fed.  Cas.  No.  12008.)  So  the  supreme 
court    cannot    enjoin    proceedings    in  a    subordinate 


805       COMMON  TO  MORE  THAN  ONE  COURT.    §  240 

State  court,  although  it  has  allowed  a  writ  of  error 
to  the  judgment  of  the  appellate  court.  (The 
Slangliter-house  Cases,  10  Wall.  273.)  The  circuit 
court  has  no  jurisdiction  over  the  proceedings  of  a 
State  court.  (Bridges  v.  Sheldon,  18  Blatchf.  517;  7 
Fed.  Rep.  45;  Watson  v.  Jones,  13  Wall.  679.)  The 
statute  applies  to  a  case  in  which  it  is  sought  to  en- 
join a  town  fi-om  levying  upon  and  selling  property 
for  the  purpose  of  collecting  an  assessment  of  bene- 
fits for  the  laying  out  of  a  highway,  which  assess- 
ment the  State  court  has  ordered  collected  (Fanwick 
Hall  Co.  V.  Town  of  Old  Saybrook,  66  Fed.  Rep.  389.) 
Although  the  circuit  court  has  no  jurisdiction  over 
the  proceedings  in  a  State  court,  yet  this  section  does 
not  prevent  it  from  releasing  a  defendant  from  pro- 
cess out  of  a  State  court  violating  its  protection,  or 
to  prevent  abuse  of  its  privileges.  (Bridges  v.  Shel- 
don, 18  Blatchf.  517;  S.  C.  7  Fed.  Rep.  45;  Hurst's 
Case,  4  Dall.  387.)  So  a  circuit  court  may  restrain 
parties  from  taking  out  criminal  process  under  a 
State  law  which  impairs  the  obligations  of  contrac! 
(Louisiana  State  Lottery  Co.  v.  Fitzpatrick,  3  Woods, 
222;  Fed.  Cas.  No.  8541);  nor  does  the  section  pro- 
hibit the  district  court,  after  a  transfer  of  the  ship 
and  freight  under  the  "Limited  Liability  Act,"  from 
restraining  the  prosecution  of  any  suit  gi'owing  out 
of  the  disaster  theretofore  commenced  and  then 
pending  in  a  State  court.  (In  re  Long  Island  etc. 
Trans.  Co.,  5  Fed.  Rep.  627.)  A  circuit  court  cannot 
issue  an  injunction  to  stay  proceedings  in  a  Stati 
court.  (The  Slaughter-house  Cases,  1  Woods,  21; 
Fed.  Cas.  No.  12938.)  An  injunction  to  restrain  suits 
in  the  State  court  for  the  collection  of  taxes  will  not 
be  granted  (Moore  v.  Holliday,  4  Dill.  52;  Fed.  Cas. 
No.  9765);  but  under  special  circumstances  a  tem- 
porary injunction  to  restrain  the  collection  of  retro- 
spective taxes  was  allowed.  (Moore  v.  Holliday,  4 
Fed.  Peoc— 68. 


§  240  COMMON   TO   MORE    THAN   ONE   COXTRT.  806 

Dill.  52;  Fed.  Oas.  No.  9765.)  Although  a  party  files 
a  bill  of  interpleader,  yet  he  cannot  restrain  a  de- 
fendant from  prosecuting  an  action  pending  in  the 
State  court.  (City  Bank  v.  Skelton,  2  Blatchf.  14: 
Fed.  Cias.  No.  2739.)  Where  the  jurisdiction  of  a 
court  and  the  right  of  a  plaintiff  to  prosecute  his  suit 
have  once  attached  that  right  cannot  be  arrested  or 
taken  away  by  proceedings  in  another  court.  (Peck 
V.  .Tenness,  7  How.  625.)  So,  if  a  marshal  is  sued  in 
a  State  court  for  taking  the  goods  of  a  third  person 
on  a  writ  of  execution,  the  proceedings  against  him 
cannot  be  enjoined.  (Evans  v.  Pack,  2  Flip.  267; 
Fed.  Cas.  No.  4566.)  This  section  prohibits  the  issue 
of  an  injunction  to  restrain  the  sale  of  property 
under  an  execution  issued  out  of  a  State  court,  al- 
though application  is  made  by  a  third  party  whose 
property  is  taken.  (Watson  v.  Bondurant,  2  Woods, 
166;  Fed.  Cas.  No.  17278;  S.  C.  30  La.  An.  1;  Daly 
V.  The  Sheriff,  1  Woods,  175;  Fed.  Cas.  No.  3553; 
Perry  v.  Sharpe.  8  Fed.  Rep.  23;  contra,  Cropper  v. 
Coburn,  2  Curt.  465;  Fed.  Cas.  No.  3416.)  The  Fed- 
eral court  will  not,  at  the  instance  of  a  receiver  of 
a  State  court,  enjoin  creditox's  who  have  attached 
property  in  a  State  court  from  prosecuting  their  suit 
(Hale  V.  Bugg,  82  Fed.  Eep.  33.)  The  holder  of  a 
chattel  mortgage  cannot  enjoin  the  sheriff  from  sell- 
ing the  property  under  execution  on  a  judgment 
against  the  mortgagor.  (Ruggles  t.  Simonton,  3 
Biss.  325;  Fed.  Cas.  No.  12120.)  The  prohibition  ex- 
tends to  injunctions  against  proceedings  to  enforce  a 
judgment  obtained  by  a  party  in  a  State  court 
(Louisville  T.  Co.  v.  City  of  Cincinnati.  73  Fed.  lU'p. 
716.)  Courts  of  the  United  States  have  jurisdiction 
over  executors  and  administrators  where  the  parties 
have  the  requisite  citizenship,  and  this  jurisdiction 
is  not  ban-ed  by  subsequent  proceetlings  in  insol- 
vency in  the  State  court.     In  such  case  the  courts 


807  COMMON   TO    MORE    THAN   ONE   COURT.  §  240 

may  interpose  in  favor  of  a  foreign  creditor  to  ai'rest 
the  distribution  of  any  surplus  of  the  estate  of  dece- 
dent. (Green  v.  Cteighton,  23  How.  90;  see  Youley 
V.  Lavender,  21  "Wall.  276;  January  v.  Powell,  29  Mo. 
241.)  The  circuit  court  cannot  issue  an  injunction 
to  prevent  a  police  ofhcer  of  a  city  from  serving  war- 
rants of  arrest  issued  by  a  State  court  Tor  violation 
of  city  ordinances,  claimed  to  be  in  contravention  of 
the  fourteenth  amendment  of  the  United  States  Con- 
stitution and  the  treaty  with  China.  (Yick  "Wo  v. 
Crowley,  26  Fed.  Rep.  207.)  Between  courts  of  con- 
current jurisdiction  the  court  first  acquiring  juris- 
diction will  not  be  interfered  with  by  another  court. 
(Davis  V.  jDife  Assn.,  11  Fed.  Rep.  781;  Ward  v. 
Todd,  103  U.  S.  327.)  Injunction  will  be  refused  by 
the  Federal  court  where  a  valid  judgment  has  been 
obtained  in  a  State  court  against  a  national  bank  and 
the  lien  thereof  has  attached  before  the  appointment 
of  a  receiver  (Baker  v.  Ault,  78  Fed,  Rep.  394.)  The 
application  of  the  statute  is  not  affected  by  the  fact 
that  the  land,  a  sale  of  which  is  sought  to  be  re- 
strained is  the  property  of  the  person  asking  the  in- 
junction (Southern  Bank  Sz  T.  Co.  v.  Folsom.  43  U.  S. 
App.  713;  75  Fed.  Rep.  929.)  Injunctions  to  stay 
proceedings  in  State  courts  were  refused  in  the  fol- 
lowing cases  (Central  Trust  Co.  v.  Grantham,  83  Fed. 
Rep.  540;  Reinach  r.  Atlantic  &  G.  W.  Ry.  Co.,  58 
Fed.  Rep.  33;  Chicago  Trust  &  Sav.  Bank  v.  Bentz, 
59  Fed.  Rep.  645;  Gates  v.  Bucki,  12  U.  S.  App.  69; 
53  Fed.  Rep.  961;  American  Assn.  v.  Hurst,  16  U.  S. 
App.  325;  59  Fed  Rep.  1;  Moloney  v.  Massachusetts 
Ben.  Assn..  53  Fed.  Rep.  209.)  What  constitutes  a 
violation  of  an  injunction  against  litigation  in  a 
State  court,  see  Stateler  v.  California  Nat.  Bank,  77 
Fed.  Rep.  43. 


§  241  COMMON   TO   MORE   THAN   ONE   COUBT.  808 

On  cause  removed. — A  circuit  court  will  not  order 
a  stay  of  all  proceedings  iu  a  State  court  in  a  caasi,'  re- 
moved into  the  circuit  court  (Fisk  v.  Union  Pac.  R. 
Co.,  6  Blatchf.  3U2;  Fed.  Cas.  No.  4827;  Perry  v. 
Sharpe,  8  Fed.  Rep.  23);  but  after  removal  it  has 
jurisdiction  to  continue  in  force  an  injunction  al- 
lowed by  the  State  court  before  the  removal.  (Smith 
V.  Schwed,  6  Fed.  Rep.  458;  and  see  Rev.  State,  sees. 
640,  046;  Act  of  March  3,  1875,  sec.  4;  18  Kev.  Stats., 
sec.  571.)  If  plaintiff,  after  removal,  brings  an  ac- 
tion in  a  State  court  upon  a  judgment  rendered 
therein  before  removal,  defendant  may  file  a  bill  in 
the  circuit  court  to  restrain  the  proceedings.  (French 
V.  Hay,  22  Wall.  250.)  Where  a  State  court  im- 
properly refuses  a  petition  for  removal,  and  renders 
final  judgment  in  a  replevin  suit,  and  orders  plain- 
tiffs to  restore  the  property,  and  on  their  refusal  to 
do  so  defendant  sues  on  the  replevin  bond,  the  Fed- 
eral court  may  restrain  the  proceedings  on  such 
suit,  the  injunction  being  merely  an  am-illary  pro- 
ceeding, and  not  forbidden  by  this  section.  (Kem  v. 
Huidekoper,  103  U.  S.  485.) 

§  241  (721).  Laws  of  the  States,  rules  of  decis- 
ion.— The  laws  of  the  several  States,  except  where 
the  Constitution,  treaties,  or  statutes  of  the  United 
States  otherwise  require  or  provide,  shall  be  re- 
garded as  rules  of  decision  in  trials  at  common  law, 
in  courts  of  the  United  States,  in  cases  where  they 
ppply.  (Rev.  Stats,  sec.  721.) 

State  laws  as  rules  of  decision  in  Federal  courts. — 
As  to  questions  not  involving  the  U.  S.  Constitution 
or  laws,  or  affecting  the  commercial  intercourse  or 
business  of  the  country  at  large,  but  relating  solely  to 
a  subject  riiatter  within  State  control,  the  Federal 
courts  should  follow  the  rules  adopted  by  the  State 


809  COMMON    TO    MORE    THAN   ONE   COUIiT.  §  241 

courts  (Kowalski  v.  Chicago  G.  W.  Ry.  Co.,  84  Fed. 
Rep.  .586;  Illinois  Trust  &  Sav.  Bank  v.  City  of  Ar- 
kansas, 40  U.  S.  App.  2.j7;  76  Fed.  Rep.  272;  Forsyth 
V.  Hammond,  166  U.  S.  .j06).  When  a  Federal  court 
construes  a  State  statute  with  reference  to  a  new 
question  and  the  State  court  subsequently  interprets 
it  differently  the  Federal  court  should  thereafter  con- 
form to  such  interpretation  (Leighton  v.  Young,  10  U. 
S.  App.  298;  52  Fed.  Rep.  439;  Sandford  v.  Poe,  37 
U,  S.  App.  378;  69  Fed.  Rep.  546;  Bauserman  v.  Blunt, 
147  U.  S.  647;  but  see  In  re  Copenhaver,  54  Fed.  Rep. 
660;  Chisholni  v.  Caiues,  67  Fed.  Rep.  285).  Federal 
courts  are  not  bound  by  the  construction  of  a  State 
statute  by  the  courts  of  the  State,  as  applied  to  con- 
tracts entered  into  before  such  construction  was 
adopted  (Caesar  v.  Capell,  83  Fed.  Rep.  403;  Central 
Trust  Co.  V.  Citizens'  St.  Ry.  Co.,  82  Fed.  Rep.  1; 
Bartholomew  v.  City  of  Austin,  U.  S.  App.  85  Fed. 
Rep.  359;  Jones  v.  Great  Southern  Fireproof  Co.,U.  S. 
App.  84  Fed.  Rep.  370;  Louisville  Trust  Co.  v.  City  of 
Cincinnati,  47  U.  S.  App.  36;  76  Fed.  Rep.  296;  Knox 
County  V.  Ninth  Nat.  Bank,  147  U.  S.  91).  If  a  contro- 
versy in  a  Federal  court  involves  a  Federal  question 
the  court  must  decide  it  for  itself,  treating  the  State 
decision  with  consideration  (Central  Trust  Co.  of  N. 
Y.  V.  Citizens'  St.  Ry.  Co.,  82  Fed.  Rep.  1;  The  J.  E. 
Rumbell,  148  U.  S.  41;  Scott  v.  McNeal,  154  U.  S. 
34;  Fallbrook  Irr.  Dist.  v.  Bradley,  164  U.  S. 
112;  Id..  68  Fed.  Rep.  949).  The  construction  of  a 
State  coiistitution  by  a  State  court  is  binding  on  the 
Federal  courts  where  no  question  affecting  the  Con- 
stitution of  the  U.  S.  is  involved  (McCain  v.  City  of 
DesMoines,  84  Fed.  Rep.  726;  Hoge  v.  Magnes,  56  U. 
S.  App.  500;  85  Fed.  Rep.  355;  Wade  v.  Travis  County, 
U.  S.  App.  81  Fed.  Rep.  742;  Folsom  v.  Township  of 
Ninety  Six.  .59  Fed.  Rep.  67;  but  see  Quaker  City  Nat. 
Bank  v.  Nolan  County,  59  Fed.  Rep.  660).     Mere  dicta 


§241  COMMON    TO    MORE    THAN    ONE   COURT.  810 

of  a  State  court  concerning  the  construction  of  a 
State  statute  are  not  binding  (Matz  v.  Cliicago  &  A. 
R.  Co.,  85  Fed.  Rep.  180);  but  are  entitled  to  -weight 
(Nat.  Bank  v.  Whitman,  76  Fed.  Rep.  097).  A  decis- 
ion by  a  State  court  as  to  whether  a  statute  of  the 
State  has  been  duly  enacted  is  binding  on  the  courts 
of  the  United  States  (Crowther  v.  Fidelity  Ins.  T.  & 
S.  D.  Co.,  U.  S.  App.  85  Fed.  Rep.  41).  Decisions  of 
State  courts  construing  its  statutes  are  binding  on  the 
Federal  courts  (Sutherland-Irmes  Co.  v.  Village  of 
Evart,  U.  S.  App.  86  Fed.  Rep.  597). 

The  decisions  of  a  State  supreme  court  that  the 
law  of  another  country  is  opposed  to  the  policy  of  a 
State  and  cannot  be  enforced  there,  are  not  controll- 
ing in  the  Federal  courts  (Evey  v.  Mexican  Cent.  Ry. 
Co.,  U.  S.  App.  81  Fed.  Rep.  294).  The  decisions 
of  an  appellate  court  not  the  highest  tribunal  in  a 
State  will  sometimes  be  followed  by  the  Federal 
court  (Seccomb  v.  Wurster,  83  Fed.  Rep.  850).  The 
direct  ruling  of  the  supreme  court  of  a  State  upon 
a  particular  question  involving  the  construction  of  a 
State  statute  will  be  followed  by  the  Federal  court 
(Andrews  v.  National  Foundry  &  Pipe  Works,  46  U. 
S.  App.  281;  70  Fed.  Rep.  100;  Bergman  v.  Bly,  27  U. 
S.  App.  650;  60  Fed.  Rep.  40).  The  fact  that  a  State 
decision  was  rendered  in  a  fxiendly  suit  does  not  im- 
pair its  authority  in  the  Federal  courts  (Sandford  v. 
Poe,37U.S.App.  378;  69  Fed.  Rtp.  546;  Adams  Express 
Co.  V.  Ohio  State  Auditor,  105  U.  S.  194).  The  Federal 
courts  will  not  follow  a  decision  of  a  State  court  made 
after  the  case  is  submitted  (Roberts  v.  Northern  Pac. 
Ry.  Co.,  158  U.  S.  1;  but  see  Western  Union  Tel.  Co. 
V.  Poe,  04  Fed.  Rep.  9).  When  a  State  court  over- 
rules its  decision  upon  the  construction  of  a  State 
statute  after  rights  have  grown  up  under  the  former 
statute  the  Federal  courts  are  not  bound  to  follow 
the  later  decision  (Wilson  v.  Ward  Lumber  Co.,  67 


811  COMMON   TO    MOBE    THAN   ONE   COURT.  §341 

Fed.  Eep.  674;  National  Foundry  &,  P.  Works  v. 
Oconto  Water  Co.,  68  Fed.  Eep.  1006). 

This  section  relates  to  the  nature  and  principles  of 
evidence,  and  also  to  competency  of  witnesses. 
iConn.  Mut.  Life  Ins.  Co.  v.  Union  Trust  Co.,  112  U. 
S.  250;  Ex  parte    FislJ,  113  U.  S.  713.) 

This  section,  originally  section  thii-ty-four  of  the 
Judiciary  Act  (1  Stats.  92),  is  construed  only  to  in- 
clude civil  cases  at  common  law,  and  not  crim- 
inal offenses  against  the  United  States.  (United 
States  V.  Reid,  12  How.  361.)  It  is  limited  strictly  to 
local  laws  (Swift  v.  Tyson,  16  Peters,  1;  Boyce  v. 
Tabb,  18  Wall.  546);  that  is  to  say.  to  the  positive 
statute  of  the  State  (Swift  v.  Tyson,  16  Peters,  1),  to 
private  statutes  (Williamson  v.  Berry,  8  How.  495), 
and  does  not  apply  to  questions  of  a  general  nature 
(Boyce  v.  Tabb,  18  Wall.  546;  Willis  v.  Board  of 
Comm'rs,  U.  S.  App.  86  Fed.  Rep.  872;  Murray  v 
Chicago  &  N.  W.  Ry.  Co.,  62  Fed.  Rep.  24;  Hartford 
Fire  Ins.  Co.  v.  Chicago  M.  &  St.  P.  Ry.  Co.,  36  U.  S. 
App.  152;  70  Fed.  Rep.  201;  Eells  v.  St.  Louis,  K.  & 
N.  W.  Ry.  Co.,  52  Fed.  Rep.  903;  Cairo  V.  &  C.  Ry. 
Co.  V.  Brevoort.  62  Fed.  Rep.  129;  Western  Union 
Tel.  Co.  V.  Cook,  15  U.  S.  App.  445;  61  Fed.  Rep.  624; 
Western  Union  Tel.  Co.  v.  Wood,  13  U.  S.  App. 
317;  57  Fed.  Rep.  471),  as  to  contracts  of  a  com- 
mercial nature,  the  true  interpretation  of  which 
is  sought  in  the  doctrine  of  commercial  juris- 
prudence. (Swift  V.  Tyson,  16  Peters,  1;  Rail- 
road Co.  V.  National  Bank.  102  U.  S.  34;  Gates  v. 
National  Bank,  100  U.  S.  239;  Pliipps  v.  Harding,  34 
U.  S.  App.  148;  70  Fed.  Rep.  468;  Berry  v.  Lake  Erie 
&  W.  R.  Co.,  70  Fed.  Rep.  679;  Farmers'  Nat.  Bank 
V.  Sutton  Mfg.  Co.,  6  U.  S.  App.  312;  52  Fed.  Rep. 
191).  United  States  courts  adopt  and  follow  the  de- 
cisions of  the  State  courts  in  questions  which  concern 
merely  the  constitutions  (Luther  v.  Borden,  7  How.  1; 


§  241  COMMOX    TO    5IOEE    THAN    ONE    COURT.  812 

Jefferson  Branch  Bank  y.  Skelly,  1  Black,  430)  and 
statutes  of  the  Slate  (Luther  v.  Borden.  7  How.  L; 
Morgan  v.  Curtenius,  20  How.  1;  Jetferson  Branch 
Bank  v.  Skelly,  1  Black,  436),  given  by  the  highest 
State  tribunal  as  part  of  the  law.  (Tjavin  v.  Emi- 
grant Indust.  Sav.  Bank,  1  Fed.  Rep.  641;  18  Blatchf. 
1;  Christy  v.  Pridgeon,  4  Wall.  196;  see  Leffingwell 
V,  WaiTem,  2  Black,  603;  Shelby  v.  Gay,  11  Wheat. 
361.)  It  applies  to  the  construction  of  a  law  provid- 
ing for  administration  of  estates  (Lavln  v.  Emigrant 
Indust.  Sav.  Bank,  IS  Blatchf.  11;  S.  C.  1  Fed.  Rep. 
641),  or  to  the  construction  of  devices  creating  es- 
tates in  fee  (Van  Rensselaer  v.  Kearney,  11  How. 
297;  Carroll  v.  Lessee  of  CaiToU,  16  How.  275):  but 
the  mere  construction  of  a  will  by  a  State  court  does 
not,  as  the  construction  of  a  statute  of  the  State,  con- 
stitute a  rule  of  decision  for  the  courts  of  the  LTnited 
States,  unless  such  construction  had  been  so  long  ac- 
quiesced in  as  to  become  a  rule  of  property.  (Lane 
V.  A^ick,  3  How.  464.)  It  applies  to  principles  estab- 
lishing title  to  real  property  (Suydam  v.  Williamson, 
24  How.  427;  Chicago  City  v.  Bobbins.  2  Black.  418; 
Hoge  V.  Magnes,  56  U.  S.  App.  500;  85  Fed.  Rep.  355; 
Henry  v.  Pittsburgh  Clay  Mfg.  Co..  39  U.  S.  App. 
605;  80  Fed.  Rep.  485);  and  the  construction  by  the 
State  supreme  court  of  the  State  statutes  establishing 
the  rule  of  properly.  (Green  v.  Neal,  6  Petei-s,  291; 
Ross  V.  Duval,  13  Peters,  45;  Lauriat  v.  Stratton,  6 
Sawy.  339,  11  Fed.  Rep.  107;  citing  Polk's  Lessee  v. 
Wendel,  9  Cranch,  98;  Jackson  v.  Chew.  12  Wheat, 
162;  Nichols  v.  Levy,  5  Wall.  433;  Independent  Dist. 
v.  Beard,  83  Fed.  Rep.  5;  Elder  v.  McChiskey,  37  U. 
S.  App.  1;  70  Fed.  Rep.  520;  Rothschild  v.  Hasbrouck, 
72  Fed.  Hep.  813;  May  v.  Teuney,  148  U,  S.  60;  Fii-st 
Xat.  Bnnk  v.  Glass.  79  Fed.  Rep.  706;  but  see  Ryan 
v.  Staples,  40  U.  S.  App.  427;  76  Fed.  Rep.  721.)  This 
rule  of  decision  does  not  apply  on  tLie  general  princi- 


813  COMMON    TO    MORE    THAN    ONE    COURT.  §  241 

pies  of  equity  not  controlled  by  local  law  or  usage 
(Neves  v.  Scott,  13  How.  268;  Montejo  v.  Owen,  14 
Blalclif.  326,  Fed.  Cas.  No.  9722),  nor  to  remedies  at 
common  law  or  in  equity  (Robinson  v,  Campbell,  3 
Wheat.  212);  but  a  nonresident  complainant  can  ask 
no  greater  relief  than  he  could  were  he  to  resort  to  the 
State  courts.  (Ewing  v.  St.  Louis,  4  Wall.  413.)  The 
rule  applies  on  questions  of  jurisdiction  of  inferior 
courts  of  the  State  under  State  laws  (Jeter  v.  Hewitt, 
22  How.  352),  as  on  a  question  to  subject  legal  and 
equitiible  interests  in  real  estate  to  the  claims  of 
creditors  (Nichols  v.  Levy,  5  Wall.  433);  but  not  to  the 
practice  of  allowing  ejectments  to  be  maintained  on 
equitable  titles  (Sheirburn  v.  Oordov^a,  24  How.  423: 
Fenn  v.  Holme,  21  How.  481),  nor  to  State  laws  regu- 
lating proceedings  on  execution  and  other  process  in 
suits  at  common  law  (Wayman  v.  Southard,  10 
Wheat.  1;  Ross  v.  Duval.  16  Peters,  45),  nor  to  all 
rules  governing  procedure  and  practice  (Brown  v.  Van 
Braam,  3  Dall.  344);  but  it  applies  to  rules  of  evi- 
dence (Hau&slinecht  v.  Claypool,  1  Black.  431),  and 
to  the  statutes  of  limitations  of  the  State  (LefEngwell 
V.  Warren,  2  Black,  599;  Sayles  v.  Oregon  Cent.  R. 
Co.,  6  Sawy.  31,  Fed.  Cas.  No.  12423;  Moores  v.  Cit- 
izens' Nat.  Bank,  11  Fed.  Rep.  624,  note,  Percy  v. 
Cockrill,  10  U.  S.  App.  574;  53  Fed.  Rep.  872;  Fearing 
V.  Glenn,  38  U.  S.  App.  424;  73  Fed.  Rep.  116),  as 
limitations  of  actions  and  executions  on  judgments 
(Sayles  v.  Oregon  Cent.  R.  Co..  6  Sawy.  31,  Fed.  Cas. 
No.  12423;  Sayles  v.  Louisville  City  R.  Co.,  9  Fed.  Rep. 
513),  except  where  the  laws  of  the  United  States 
otherwise  provide,  as  in  patent  cases.  (Sayles  v. 
Oregon  Cent.  R.  Co.,  6  Sawy.  31,  Fed.  Cas.  No.  12423; 
Leffingwell  v.  Warren,  2  Black,  599;  Johnson  v.  Roe, 
1  Fed.  Rep.  695;  Ross  v.  Duval,  13  Peters, 45;  Sayles  v. 
Louisville  City  R.  Co.,  9  Fed.  Rep.  513.)  The  decision 
of  State  courts  will  be  followed  as  to  the  construe- 


§  241  COMMON    TO    MORE    THAN    ONE    COIRT.  814 

tion  of  a  contract  declared  by  the  State  court  void, 
on  the  general  principles  of  public  policy,  unless  the 
question  was  whether  the  legislation  impaire  the  ob- 
ligation of  the  contract.  (Delmas  v.  Ins.  Co.,  14  Wall. 
661;  see  Budge  Proprietors  v.  Hoboken  Co.,  1  Wall. 
116.)  It  applies  to  the  interpretation  of  contracts 
made  by  the  State,  as  statutes  authorizing  municipal 
corporations  to  subscribe  to  aid  railroads  extending 
beyond  the  limits  of  the  city  or  county,  and  to  issue 
bonds  accordingly.  (Gelpecke  v.  Dubuque,  1  Wall. 
175),  and  to  the  question  as  to  the  validity  of  munici- 
pal bonds  issued  under  the  State  law  (Mitchell  v. 
Bui'lington,  4  Wall.  271);  but  not  to  a  question  of 
contract  made  by  the  State  which  violates  the  Con- 
stitution of  the  United  States.  (Bridge  Prop.  v.  Ho- 
boken Co.,  1  Wall.  116;  see  Delmas  v.  Ins.  Co.,  14 
Wall.  661.)  So  it  applies  to  the  construction  of  a 
State  grant,  as  a  ferry  franchise.  (Conway  v.  Taylor, 
1  Black,  603.)  To  what  extent  the  Federal  courts 
adopt  and  follow  the  decisions  of  the  State  courts, 
determined.  (Gage  v.  Pumpelly,  115  U.  S.  454;  Car- 
roll County  V.  Smith,  111  U.  S.  556;  Norton  v.  Shelby 
County,  118  U.  S.  425;  Gibson  v.  Lyon,  115  U.  S.  439; 
Louisville  etc.  R.  R.  Co.  v.  Palmes,  109  U.  S.  244; 
Yick  Wo  V.  Hopkins.  118  U.  S.  356;  Anderson  v. 
Santa  Anna,  116  U.  S.  356;  Buford  v.  Holley,  28  Fed. 
Rep.  680;  Woodward  v.  Gould,  28  Fed.  Rep.  736: 
Dodd  V.  Ghiselin,  27 -Fed.  Rep.  405;  Freund  v.  Yaeg- 
erman,  27  Fed.  Rep.  248;  Rico  v.  Frayser,  24  Fed. 
Rep.  460;  Moulton  v.  Chafee,  22  Fed.  Rep.  26;  Venner 
V.  Atchison  etc.  R.  R.  Co.,  28  P\^d.  Rep.  581;  National 
Foundry  &  P.  Works  v.  Oconto  Water  Co.,  68  Fed. 
Rep.  1006;  Chisholm  v.  Gaines,  67  Fed.  Rep.  285; 
Wilson  V.  Neal,  23  Fed.  Rep.  129;  Raymond  v.  Parish 
of  Terrebonne,  28  Fed.  Rep.  773;  Cook  County  v.  Cal- 
umet &  C.  Canal  &  D.  Co.,  138  U.  S.  635;  Lookout  Mt. 
R.  Co.  V.  Houston,  44  Fed.  Rep.  449;  Heath  v.  Wal- 


815       COMMON  TO  MORE  THAN  ONE  COURT.    §  241 

lace,  138  U.  S.  573.)  State  laws  and  decisions  gov- 
ern United  States  courts,  as  to  title  and  transfer  of 
real  estate  by  grant  or  devise.  (Claiborne  Co.  v. 
Brooks,  111  U.  S.  400;  see  Bncher  v.  Railroad  Co., 
125  U.  S.  555;  St.  Louis  v.  Rutz,  138  U.  S.  226;  Buford 
v.  Kerr,  86  Fed.  Rep.  97.)  Where  a  local  law  or  cus- 
tom has  been  establlsbed  by  repeated  decisions  of  tbe 
highest  courts  of  a  State,  it  becomes  also  the  law 
governing  the  courts  of  the  United  States  sitting  in 
that  State.  (Burgess  v.  Seligman,  107  U.  S.  20.)  It 
has  been  held,  however,  that  rules  of  property  and  ac- 
tion in  the  State  are  always  regarded  by  the  Federal 
courts;  but  the  Federal  courts  exercise  their  own 
judgment  in  reference  to  the  doctrines  of  commercial 
law  and  general  jurisprudence.  (Pleasant  Twp.  v. 
Aetna  L.  Ins.  Co.,  138  U.  S.  67.)  A  State  decision  as 
to  the  extent  and  powers  of  a  corporation  created 
under  its  laws  is  binding  on  a  Federal  court  (Sioux 
City  Terminal  Ry.  etc.  v.  Trust  Co.  of  North  America, 
49  U.  S.  App.  523;  82  Fed.  Rep.  124).  The  State  stat- 
ute of  frauds  is  applicable  to  a  suit  in  equity  brought 
in  a  Federal  court  (Buhl  v.  Stevens,  84  Fed.  Rep. 
922;  Moses  v.  National  Bank  of  Lawrence  Co.,  149 
U.  S.  298).  A  State  decision  as  to  the  effect  of  its 
Sunday  laws  upon  contracts  is  binding  (Hill  v.  Hite, 
56  U.  S.  App.  403;  85  Fed.  Rep.  268).  A  State  decis- 
ion consti'uing  common  law  rules  of  evidence  is  not 
binding  (Union  Pac.  Ry.  Co.  v.  Yates,  49  U.  S.  App. 
241;  79  Fed.  Rep.  584).  Decisions  of  a  State  court  to 
the  effect  that  under  the  State  statutes  one  out  of 
possession  can  bring  a  suit  to  remove  a  cloud  on  title 
are  binding  (Harding  v.  Guice,  42  U.  S.  App.  411;  80 
Fed.  Rep.  162),  as  are  decisions  construing  the  reg- 
istration statutes  of  the  State  (Union  Pac.  Ry.  Co. 
V.  Reed,  49  U.  S.  App.  233;  80  Fed.  Rep.  234).  The 
Federal  courts  recognize  no  lien  at  common  law  in 
behalf  of  an  attorney,  beyond  that  given  by  the  local 


§241  COMMON    TO    MORE    THAN   ONE   COUUT.  816 

law  (Gregory  v.  Pike,  21  U.  S.  App.  658;  67  Fed.  Rep. 
837).  Tlie  (lecisiion  of  State  tribunals  as  to  the  I'igbt 
of  set  off,  except  as  it  is  enforced  in  equity  is  a  matter 
of  local  legislation  (Charnley  v.  Sibley,  34  U.  S.  App. 
705;  73  Fed.  Rep.  980).  Where  an  indictment  found 
in  court  of  a  State  in  which  offense  is  defined  by 
statute,  is  removed  to  a  P'ederal  court  for  trial,  the 
latter  court  must  be  controlled  by  the  State  decis- 
ions (State  V.  Gosuell,  74  Fed.  Rep.  734).  Decisions 
of  the  supi-eme  court  of  a  State  construing  its  attach- 
ment laws  are  rules  of  decision  in  the  Federal  courts 
(Riice  V.  Adler,  Goldman  Commission  Co.,  36  U.  S. 
App.  2GG;  71  Fed.  Rep.  151). 

The  rights  and  liabilities  respecting  surface  watea* 
are  matters  of  local  law  (Walker  v.  New  Mexico  & 
S.  P.  R.  R.  Co.,  165  U.  S.  593).  State  decisions  as  to 
whether  or  not  certain  workmen  are  fellow  servants 
do  not  bind  Federal  courts.  (Newport  News  &  M. 
Co.  V.  Howe,  6  U.  S.  App.  172;  52  Fed.  Rep.  362;  con- 
tra, Becker  v.  Baltimore  &  O.  Ry.  Co.,  57  Fed.  Rep. 
188.)  But  decisions  relating  to  compensation  for  im- 
provements upon  laud,  made  in  good  faith,  are  rules 
of  properly  and  binding  (McClaskey  v.  Barr,  62  Fed. 
Rep.  209);  as  are  decisions  upon  the  question  of  the 
validity  of  a  chattel  mortgage  (Wilson  v.  Perrin,  22 
U.  S.  App.  514;  62  Fed.  Rep.  629);  and  as  to  the  lia- 
bility of  an  employer  for  in.iurii«  to  his  employee 
(Northern  Pac.  Ry.  Co.,  v.  Ilogan,  27  U.  S.  App.  184; 
03  Fed.  Rep.  102);  and  decisions  that  contributory 
uegMgence  shall  not  be  a  complete  bar  to  a  statutory 
action  for  negligence  (Byrne  v.  Kansas  City  F.  S.  & 
M.  R.  Co.,  22  U.  S.  App.  220;  61  Fed.  Rep.  605). 
State  decisions  interiDreting  statutes  as  to  the  right 
of  counties  to  make  contracts  are  binding  on  Federal 
courts  (Thompson  v.  Searcy  County,  12  U.  S.  App. 
618;  57  Fed.  Rep.  10.30).  The  decisions  of  a  State 
court  construing  a  contract  are  not  binding  (Hambley 


817  COMMON    TO   MOKE   THAN   ONE   COUKT.  §  241 

V.  Bancroft,  83  Fed.  Rep.  444).  The  meaniing  of  a 
State  statute,  declared  by  the  highest  court  of  a  State, 
is  conclusive  upon  the  supreme  court  of  the  United 
States  (Morley  v.  Lake  Shore  etc.  Ry.  Co.,  146  U.  S. 
162;  Miller  v.  Swan,  150  U.  S.  132:  Baltimore  Traction 
Co.  V.  Baltimore  Belt  Ry.  Co.,  151  U.  S.  137;  Marchant 
V.  Pennsylvania  R.  R.  Co.,  153  U.  S.  380;  Fallbrook 
Irr.  Dist.  v.  Bradley,  1G4  U.  S.  112;  First  Nat.  Bank  v. 
County  of  Chehalis,  166  U.  S.  440;  Wilson  v.  State  of 
South  Carolina,  169  U.  S.  586);  but  not  if  it  is  claimed 
in  a  direct  appeal  from  the  State  supreme  court  that 
the  judgment  was  against  a  right  claimed  under  the 
U.  S.  Constitution  (Scott  v.  McNeal,  154  U.  S.  34^. 
The  construction  by  the  State  court  of  a  statute  is 
binding  upon  the  supreme  court  of  the  U.  S.  in  deter- 
mining whether  the  statute  conforms  to  the  Consti- 
tution of  the  United  States  (Missouri  Pac.  B.  R.  Co. 
V.  State  of  Nebraska,  164  U.  S.  403;  Merchants  & 
M'f'rs  Bank  v.  Penn.,  167  U.  S.  461).  The  decision 
of  a  State  court  as  to  the  time  when  a  cause  of  action 
accrues  in  case  of  fraud  or  concealment,  based  not  on 
a  construction  of  the  State  statute  but  upon  the  view 
taken  of  tlie  common  law,  is  not  binding  on  Federal 
courts  (Murray  v.  Chicago  &  N.  W.  By.  Co.,  62  Fed. 
Rep.  24). 

Administering'  remedies  prescribed  by  State  stat- 
utes.—Rights  created  by  State  statute  to  be  pursued 
in  the  State  courts  may  be  administered  in  the  Fed- 
oral  courts,  either  at  law,  in  equity  or  in  admiralty 
(Darragh  v.  Welton  Mfg.  Co.,  78  Fed.  Rep.  7;  Chicot 
County  V.  Shei"Wood,  148  U.  S.  529;  Indianapolis 
Water  Co.  v.  American  Strawboard  Co.,  53  Fed.  Rep. 
970;  Fai-mers'  Loan  &  T.  Co.  v.  Toledo  A.  A.  &  N.  M. 
Co.,  67  Fed.  Rep.  73;  First  Nat.  Bank  v.  Peavey,  69 
Fed.  Rep.  455;  but  see  The  Wm.  M.  Hoag,  69  Fed. 
Rep.  742;  England  v.  Russell,  71  Fed.  Rep.  818).     The 

V^D.  Piioc— 69. 


Ji  242  COMMON   TO    MORE    THAN   OXE   COURT.  818 

Federal  courts  adopt  the  statutes, of  limitation  of  the 
State  where  the  court  is  sitting  (Miles  v.  Vivian,  51 
U.  S.  App.  194;  79  Fed.  Rep.  848;  Fearing  v.  Glenn, 
38  U.  S.  App.  424;  73  Fed.  Rep.  116;  Coclcrill  v.  Butleo", 
78  Fed.  Rep.  679;  Haydeo  v.  Thompson,  36  U.  S.  App. 
361;  71  Fed.  Rep.  60;  Scheftel  v.  Hays,  19  U.  S.  App. 
220;  58  Fed.  Rep.  457;  IMetcalf  v.  City  of  WatertowTi, 
153  U.  S.  671;  Ballcam  v.  Woodstoclc  Iron  Co.,  154  U. 
S.  177).  But  State  statutes  of  limitations  do  not  ap- 
ply where  the  United  States  is  phiintiff  (U.  S.  v. 
Belli^nap,  73  Fed.  Rep.  19.)  State  laws  relating  to  in- 
solvency and  assignment  for  creditors  do  not  control 
the  Federal  courts  in  receivership  cases,  (London  & 
S.  F.  Banli  v.  Willameftte  Steam  M.  L.  &  M.  Co.,  80 
Fed.  Rep.  226.)  The  Federal  courts  in  administering 
equitable  relief  are  not  bound  by  any  restrictions  of 
the  local  law,  but  may  have  the  benefit  of  any  en- 
largement of  equitable  rights  by  the  State.  (Boston 
&  M.  R.  R.  Co.  V.  Slocum,  77  Fed.  Rep.  345;  Meyers 
V.  Shields,  61  Fed,  Rep.  713;  Prentice  v.  Duluth  Stor- 
age &  F.  Co.,  19  U.  S.  App.  100:  58  Fed.  Rep.  437.) 
A  State  statute  allowing  a  married  woman  to  sue  in 
her  own  name  does  not  govern  the  Federal  courts 
in  equity  suits  (Wills  v.  Pauly,  51  Fed.  Rep.  257),  nor 
are  the  P'ederal  courts  governed  by  a  provision  in  the 
State  laws  with  reference  to  tlie  directing  of  a  jury 
to  make  special  findings.  (Dwyer  v.  St.  Louis  &  S. 
F.  R.  Co.,  52  Fed.  Rep.  87.) 

§  242  (72;.^).  Proceedings,  civil  and  criminal, 
in  vindication  of  civil  rights. — The  jurisdiction  in 
civil  and  criminal  matters  conferred  on  the  district 
and  circuit  court  by  the  provisions  of  this  title,  and 
of  title  "Civil  Eights/'  and  of  title  "Crimes,"  for 
the  protection  of  all  persons  in  the  United  States 
in  their  civil  rights,  and  for  their  vindication,  shall 


819       COMMON  TO  MOEE  THAN  ONE  COURT.    §  242 

be  exercised  and  enforced  in  conformity  with  the 
laws  of  the  United  States,  so  far  as  such  laws  are 
suitable  to  carry  the  same  into  effect;  but  in  all 
cases  where  they  are  not  adapted  to  the  object,  or 
are  deficient  in  the  provisions  necessary  to  furnish 
suitable  remedies  and  punish  offenses  against  law, 
the  common  law,  as  modified  and  changed  by  the 
constitution  and  statutes  of  the  State  wherein  the 
court  having  jurisdiction  of  such  civil  or  criminal 
cause  is  held,  so  far  as  the  same  is  not  inconsistent 
with  the  Constitution  and  laws  of  the  United 
States,  shall  be  extended  to  and  govern  the  said 
courts  in  the  trial  and  disposition  of  the  cause,  and, 
if  it  is  of  a  criminal  nature,  in  the  infliction  of  pun- 
ishment on  the  party  found  guilty,  (Kev.  Stats. 
sec.  722). 

Remedy  at  law. — If  the  remedy  at  law  is  speedy 
and  adequate,  a  remedy  in  equity,  created  by  State 
statute,  cannot  be  resorted  to  in  tlie  Federal  courts, 
by  reason  of  the  provisions  of  this  section,  and  of 
article  7  of  the  Constitutional  Amendments,  ^aran- 
teeing  the  right  of  trial  by  jury.  (Whitehead  v.  Ent- 
whistle,  27  Fed.  Rep.  778.)  Federal  courts  will  fol- 
low the  procedure  of  the  State  courts  regarding  ob- 
jections to  the  irregularities  in  the  selection  of  the 
grand  jury.  (United  States  v.  Eagan,  30  Fed.  Bep. 
608.) 

Remedies  in  law  and  equity  not  blended.— The 
blending  of  remedies  is  not  permissible  in  the  United 
States  courts.  All  actions  which  seek  to  recover  spe- 
cific property,  with  or  without  damages,  or  a  money 
judgment  for  breach  of  a  simple  contract,  or  damages 
for  injury  to  person  or  property,  are  legal  actions, 
and  can  be  brought  in  the  Federal  courts  only  on  their 


§  243  COMMON   TO   MORE   THAN   O.XE   COURT.  820 

law  side,  provisions  in  the  State  statutes  to  the  con- 
trary notw-ithsmndiug.  (Scott  v.  Neely,  140  U.  S.  106; 
Hipp  V.  Babin,  60  U.  S.  278;  Lewis  v.  Cgclis,  23  Wall. 
466;  Killian  v.  Ebbinhaus.  110  U.  S.  568:  Buzard  v. 
Houston,  lit)  U.  S.  347;  Thompson  v.  Railroad  Cos.. 
6  ^\'all.  134;  Robinson  v.  Campbell,  3  Wheat.  212; 
Fenn  v.  Holmes,  21  How.  481;  Clapp  v.  City  of  Spo- 
kane, 53  Fed.  Rep.  515;  Whitney  v.  FairbanlvS,  54 
Fed.  Rep.  985;  Hollins  v.  Brierfield  Coal  &  Iron  Co., 
150  U.  S.  371;  Coit  v.  Sullivan  Kelly  Co.,  84  Fed. 
Rep.  724.)  And  equitable  causes  can  only  be  brought 
on  the  equity  side.  (Kircher  v.  Murray,  U.  S.  App.; 
54  Fed.  Rep.  617.)  Where  a  case  of  a  purely  legal 
nature  was  brought  in  the  State  court  in  the  form 
of  a  bill  in  equity  under  a  local  statute  and  removed 
to  the  Federal  court  and  conducted  as  an  equity  suit, 
upon  appeal  the  case  was  remanded,  with  instructions 
to  redoeket  the  case  as  one  at  law  and  to  refi-ame  the 
pleadings  accordingly.  (^IcConnell  v.  Provident  Sav. 
Life  Assn.,  37  U.  S.  App.  213;  69  Fed.  Rep.  113.) 

><  243  (72;}).  When  suits  in  equity  maybe 
maintained. — Suits  in  equity  shall  not  be  sustained 
in  either  of  the  courts  of  the  United  States  in  any 
case  where  a  plain,  adequate,  and  complete  remedy 
may  be  had  at  law.     (llev.  Stats,  sec.  723.) 

Generally.— This  section  is  merely  declaratory, 
making  no  alteration  whatever  in  the  rules  of  equity 
on  the  subject  of  legal  remedy.  (Boyce  v.  G-rundy,  3 
Peters,  210.) 

Plain,  Adequate  and  Complete  Remedy  at  Law. 
— ^This  phrase  refers  to  the  common  law  and  not 
to  State  statutes.  (Dodge  v.  Woolsey,  18  How. 
.331;  Cropper  v.  Coburn.  2  Curt.  465;  Fed.  Cas. 
No.  3416;  Pratt  v.  Northam,  5  Mason,  95;  Fed.  Cas. 


821       COMMON  TO  MOKE  THAN  ONE  COURT.    §  243 

No.  11ST6;  Gordon  v.  Hobart,  2  Sum.  401;  Fed.  Gas. 
No.  5G09;  Kimball  y.  Mobile,  3  Woods,  555;  Fed.  Gas. 
No.  7774.)  The  adequate  remedy  at  law  is  that  which 
existed  when  the  judiciary  act  of  1789  was  adopted 
unless  subsequently  changed  by  act  of  Congress. 
(Missouri  K.  &.  T.  R.  Go.  v.  Elliot;  5G  Fed.  Rep.  773  ^ 
The  object  of  the  provision  requiring  suits  to  be 
brought  at  law  when  possible  was  to  insure  the  pre- 
servation of  the  right  to  a  jury  trial.  (Grether  v. 
Wright,  43  U.  S.  App.  470;  75  Fed.  Rep.  742;  In  re 
Foley,  76  Fed.  Rep.  390.)  So  whenever  a  court  of 
law  is  competent  to  proceed  to  final  judgment  and 
afford  a  remedy,  plaiuj  adequate,  and  complete,  the 
plaintiff  must  pursue  that  remedy.  (Wright  v.  Elli- 
son, 1  Wall.  16;  Dade  v.  Irwin,  2  How.  383;  Andrews 
v.  Solomon,  Peters  G.  C.  356;  Fed.  Gas.  No.  378; 
Magniac  v.  Thompson.  15  How.  281;  Hungerford  v. 
Ligerson,  20  How.  156;  Shapley  v.  Rangeley,  1  Wood. 
&  M.  213;  Fed.  Gas.  No.  12707);  and  the  ab- 
sence of  a  plain  and  adequate  remedy  is  the  only 
test.  (Watson  v.  Southerland,  5  Wall.  74.)  The  rem- 
edy at  law  in  order  to  exclude  equity  must  be  as  prac- 
tical and  efficient  to  the  ends  of  justice  as  the  rem- 
edy in  equity.  (Tyler  v.  Savage,  143  U.  S.  79.)  The 
objection  that  there  is  a  plain  and  adequate  remedy 
is  jurisdictional  and  may  be  enforced  by  the  court 
of  its  own  motion  (Parker  v.  W.  L.  G.  &  W.  Go., 
1  Blacli,  545;  Baker  v.  Biddle,  Bald.  394;  Fed.  Gas. 
No.  764;  Post  v.  Gorbin,  5  Bank  Reg.  11,  Fed.  Gas. 
No.  11299;)  it  may  be  waived  (see  Waite  v.  O'Neal, 
72  Fed.  Rep.  348;  Levi  v.  Evans,  18  U.  S.  Am>.  293; 
57  Fed.  Rep.  677;  Book  v.  Justice  Mining  Go.,  58  Fed. 
Rep.  827;  Knight  v.  Fisher,  58  Fed.  Rep.  991);  but  the 
remedy  must  be  plain  and  adequate.  (Boyce  v. 
Grundy,  3  Peters  210;  Watson  v.  Southerland,  5  Wall. 
74;  Morgan  v.  Beloit,  7  Wall.  613;  Oelrichs  v.  Spain, 
15  Wall.  211;  Pierpont  v.  Fowle,  1  Wood  &  M.  23; 


§  243  COMMON    TO    MOUE    THAN    ONE   COURT.  822 

Fed.  Cas.  No.  11152;  Maj^er  v.  Foulkrod,  4  Wash.  C. 
C.  349;  Fed.  Cas.  No.  9341.)  So  a  party  is  not  remit- 
ted to  a  court  of  law  wbere  the  remedj'  is  not  effec- 
tual and  complete.  (Wylie  v.  Coxe,  15  How.  415; 
May  V.  Le  Claire,  11  Wall.  217;  Brown  v.  Pac.  M. 
S.  Co.,  5  Blatchf.  525;  Fed.  Cas.  No.  2025.)  If  a 
plaintiff'  has  an  adequate  remedy  at  law  by  a  suit 
for  damages,  a  suit  in  equity,  though  permitted  by 
State  laws,  should  not  be  entertained  by  a  State 
court.  (Clamp  v.  City  of  Spokane,  53  Fed.  Rep.  515.) 
If  a  right  is  equitable,  or  if  legal  the  remedy  is  only 
equitable,  or  both  legal  and  equitable,  the  suit  for  its 
assertion  may  be  equitable  (Baker  v.  Riddle,  Bald. 
394;  Fed.  Cas.  No.  764);  and  it  is  then  no  ob- 
jection that  the  remedy  in  that  pai-ticular  case 
might  be  adequate.  (U.  S.  v.  Meyers,  2  Brock.  51G; 
Fed.  Cas.  No.  15844;  Pratt  v.  Northam,  5  Mason,  95; 
Fed.  Cas.  No.  11376).  If  the  remedy  at  law  was  par- 
tial and  would  leave  the  party  to  renew  the  contest 
in  a  series  of  suits,  he  may  have  relief  in  equity 
(Boyce  v.  Grundy,  3  Peters.  210:  Hipp  v.  Babin,  19 
How.  271;  Lewis  v.  Cocks,  23  Wall.  466);  so  in  case 
of  an  illegal  tax,  to  prevent  a  multiplicity  of  suits. 
(Union  Nat.  Bank  v.  Chicago.  3  Biss.  82;  Fed.  Cas. 
No.  14374;  Dows  v.  Chicago.  11  Wall.  108;  First  Nat. 
Bank  v.  Douglas,  3  Dill.  29S;  Fed.  Cas.  No.  4809; 
Union  Pac.  R.  II.  Co.  v.  MoShane,  3  Dill.  303;  Fed. 
Cas.  No.  14.382;  Crane  v.  McCoy,  1  Bond,  422;  Fed. 
Cas.  No.  3354;  Plummer  v.  Conn.  Mut.  L.  Ins.  Co.,  1 
Holmes,  267;  Fed.  Cas.  No.  11232;  Garrison  v.  Mem- 
phis Ins.  Co.,  19  How.  312.)  The  test  of  jurisdiction 
in  an  action  at  law  is  whether,  on  the  facts  shown, 
the  plaintiff  is  entitled  to  any  relief  which  a  court  of 
law  is  competent  to  give.  (Blalock  v.  Equitalde  Life 
Assur.  Soc,  41  U.  S.  App.  761;  75  Fed.  Rep.  43.)  If 
a  defendant  in  an  action  at  law  has  equitnl)le  rights 
which  he  is  entitled  to  enforce  against  plaintiff,  he 


823       COMMON  TO  MORE  THAN  ONE  COURT.    §  243 

should  resort  to  equity  to  arrest  or  stay  the  action  at 
law.  (Owens  v.  Heidbreder,  41  U.  S.  App.  736;  78 
Fed.  Rep.  837.)  There  is  nothing  peculiar  to  infringe- 
ment suits  for  damages  and  profits  whereby  equity 
jurisdiction  may  be  maintained,  and  it  must  appear 
that  the  remedy  at  law  is  inadequate.  (Woodmanse 
&  Hewitt  Mfg.  Co.  v.  Williams,  37  U.  S.  App.  109;  68 
Fed.  Rep.  489).  If  the  trial  court  had  jurisdiction 
of  the  subject  matter  of  an  equity  suit,  an  objection 
to  the  jurisdiction  on  the  ground  that  complainant 
had  a  plain,  adequate  and  complete  remedy  at  law 
comes  too  late  on  appeal.  (Lone  Jacli  Min.  Co.  v. 
Megginson.  47  U.  S.  App.  452;  82  Fed.  Rep.  89). 

Remedy  at  law. — A  bill  in  equity  is  not  the  appro- 
priate remedy  to  enforce  a  decree  in  chancery  for 
the  payment  of  money.  (Tilford  v.  Oaliley,  Hemp. 
197.)  So  a  suit  at  law  cannot  be  enjoined  merely  be- 
cause the  party  has  a  good  defense  (Rogers  v.  Cin- 
cinnati, 5  McLean,  337;  Fed.  Cas.  No.  12008);  nor  will 
a  bill  be  entertained  to  recover  possession  of  property 
taken  from  the  marshal  by  the  sheriff.  (Knox  v. 
Smith.  4  How.  298.)  So  a  court  of  equity  cannot  de- 
cree that  an  indorser  pay  a  note.  (Shields  v.  Bar- 
row, 17  How.  130.)  A  party  cannot  by  bill  in  equity 
enforce  payment  of  a  policy  (Graves  v.  Boston  Mar. 
Ins.  Co.,  2  Cranch,  215);  nor  can  a  party  maintain  a 
bill  to  enforce  a  liability  for  falsely  recommending 
another.  (Russell  v.  Clarke,  7  Cranch,  69.)  A  mu- 
nicipal corporation  cannot  maintain  a  bill  to  cancel 
a  bond  issued  without  authority  and  in  violation  of 
official  duty  (Grand  Chute  v.  Winegar,  15  Wall.  373); 
nor  can  an  insurance  company  maintain  a  bill  to  can- 
cel a  policy.  (Insurance  Co.  v.  Bailey,  13  Wall.  616; 
Home  Ins.  Co.  v.  Stanchfield,  1  Dill.  424;  Fed.  Cas. 
No.  66G0.)  The  mere  fact  that  the  evidence  is  volumin- 
ous is  not  a  gi'ound  for  equitable  intervention.  (Bowen 
v.  Chase,  94  U.  S.  812.) 


§  243  COMMON    TO    MORE    THAN    ONE   COUKT.  824 

Remedy  in  equity.— Equity  will  entertain  a  bill  for 
an  account  only  where  action  for  account  is  the 
proper  remedy  at  law,  or  where  a  trustee  is  a  party 
(Fowle  Y.  Lawrason,  5  Peters,  495;  Blakeley  v.  Bis- 
coe,  iienip.  114j;  so  a  bill  may  be  filed  to  correct  a 
mistake  in  parlnei'ship  accounts  (Ivinson  v.  Hut  tun. 
98  U.  S.  79),  but  it  cannot  draw  to  itself  every  trans- 
action in  which  an  account  is  to  be  adjusted;  it  is 
only  in  transactions  of  great  complexity  or  difficulty 
at  law,  or  some  discovery  is  required,  that  equity  will 
interpose.  (Fowle  v.  Lawrason,  5  Peters,  495.)  A 
trustee  or  cestui  que  trust  may  file  a  bill  to  obtain 
possession  of  land  subject  to  the  trust  (Harrison  v. 
Rowan,  4  Wash.  C.  C.  202;  Fed.  Cas.  No.  0143);  or 
an  assignee  in  bankruptcy  to  obtain  the  value  of  prop- 
erty transferred  by  a  partner.  (Taylor  v.  Rasch,  5 
Bank.  Reg.  399;  Fed.  Cas.  No.  13801.)  If  the  United 
States  claims  priority  of  payment  out  of  a  trust  fund 
(Hunter  v.  United  States,  5  Peters,  173), or  has  a  claim 
against  a  party  who  has  made  a  deed  of  trust,  it  may 
file  a  bill  in  equity  against  the  trustee.  (United  States 
v.  Mj^ers,  2  Brock.  51(j;  Fed.  Cas.  No.  15844.)  A 
statute  allowing  supplementary  proceedings  does  not 
prevent  the  filing  of  a  creditor's  bill  (Putnam  v.  New 
Albany,  4  Biss.  365;  Fed.  Cas.  No.  11481);  or  although 
a  State  law  allows  suit  against  a  debtor  of  a  debtor. 
(United  istates  v.  Howland,  4  Wheat.  108.)  An  inde- 
pendent suit  against  a  railroad  receiver  to  recover 
a  simple  contract  debt  owing  by  the  receiver  is  not 
sustainable  in  equity.  (Nash  v.  Ingalls,  79  Fed.  Rep. 
510.)  If  there  is  no  adecjuate  remedy  at  law.  a  stock- 
holder may  apply  in  equity  to  prevent  a  corporation 
from  committing  a  breach  of  trust  or  violation  of 
chartered  rights  (Dodge  v.  Woolsey,  18  How.  331; 
Wheeling  v.  Mayor,  1  Hughes,  90;  Fed.  Cas.  No. 
17502);  and  when  a  bill  is  filed  to  recover  stock,  an 
action  at  law  for  damages  is  not  the  proper  remedy. 


825  COMMON   TO   MORE   THAN   ONE   COURT.  §  243 

(Kilgonr  v.  N.  O.  Gaslight  Co..  2  Woods,  144;  Fed. 
Cas.  No.  7764.)  Where  a  creditor  has  a  purely  legal 
demand  a  suit  cannot  be  brought  upon  it  in  equity 
merely  because  it  is  against  the  estate  of  a  deceased 
person.  (Wallser  v.  Brown,  27  U.  S.  App.  291;  63 
Fed.  Rep.  204;  but  see  Johnson  v.  Culbertson,  79  Fed. 
Rep.  5.)  A  ferae  covert  may  file  a  bill  to  recover 
money  to  which  she  is  entitled  (Hunt  v.  Danforth, 
2  Curt.  592;  Fed.  Cas.  No.  6887):  or  a  legatee  a  bill 
against  the  executor  to  recover  a  legacy  (Mayor  v. 
Foulkrod,  4  Wash.  C.  C.  349;  Fed.  Cas.  No.  9341);  or 
a  distributee  to  recover  his  share  of  the  estate. 
(Payne  v.  Hook,  7  Wall.  425;  Pratt  v.  Northam,  5 
Mason,  93:  Fed.  Cas.  No.  11376.)  A  party  in  pos- 
session of  land  may  file  a  bill  to  quiet  title  (Moi'ton 
V.  Root,  2  Dill.  312;  Fed.  Cas.  No.  9866);  but  one  who 
has  the  legal  title  cannot  madntain  a  bill  against  par- 
ties in  possession  of  the  land.  (Speigle  v.  Meredith, 
4  Biss.  120;  Fed.  Cas.  No.  1:3227);  and  this  is  so  even 
where  a  State  statute  i)ermits  such  a  suit.  (Gordan 
V.  Jackson,  72  Fed.  Rep.  86;  Eiffert  v.  Craps,  8  U.  S. 
App.  436;  58  Fed.  Rep.  470;  Frey  v.  Willoughby,  27 
U.  S.  App.  417;  63  Fed.  Rep.  865.)  The  circuit  court 
will  entertain  jurisdiction  of  a  bill  for  relief  against 
a  judgment  and  sale  thereunder  on  the  ground  of 
fraud.  (Shelton  v.  Tiflin,  6  How.  163.)  A  party  im- 
peaching  a  judicial  sale  for  fraud  may  proceed,  al- 
though he  has  a  remedy  at  law  (Slater  v.  Maxwell, 
6  Wall.  268;  Cocks  v.  Izard,  7  Wall.  559);  or  although 
he  can  have  his  right  to  the  property  summarily 
determined  in  a  State  court.  (Breeden  v.  Lee,  2 
Hughes,  484;  Fed.  Cas.  No.  1828.)  A  creditor  may 
file  a  bill  to  set  aside  a  fraudulent  conveyance.  (Rail- 
road Co.  V.  Howard,  7  Wall.  392;  Bean  v.  Smith,  2 
Mason,  252;  Fed.  Cas.  No.  1174.)  So  a  bill  may  be 
filed  to  recover  money  fraudulently  appropriated  by 
directors  of  a  corporation.     (Giugrat  v.  Dane,  4  Cliff. 


§  243  COMMON    TO    MORE    THAX    ONE   COURT.  826 

260;  Fed.  Cas.  No.  5455.)  If  a  party  is  possessed  of 
a  full  equitable  title  to  lands  he  may  resort  to  a  court 
of  equity  to  protect  himself,  although  perhaps  he 
might  defend  in  an  action  at  law  by  asserting  title 
by  prescription.  (Massenburgh  v.  Dennison,  30  U.  S. 
App.  612;  71  Fed.  Rep.  618.)  If  a  party  has  been  in- 
duced by  fraudulent  represeutations  to  purchase  laud, 
he  may  file  a  bill  to  rescind  a  contract  (Boyce  v. 
Grundy,  3  Peters,  210;  so  a  bill  may  be  sustained  to 
establish  a  will  fraudulently  suppressed  if  it  avoids 
a  multiplicity  of  suits.  (Gaines  v.  Chew,  2  How. 
619.)  If  the  question  of  fraud  has  been  tried  at  law 
it  cannot  be  reviewed  in  equity  without  suggestions 
of  equitable  circumstances  which  could  not  be  availed 
of  at  law.  (Smith  v.  Mclver,  9  Wheat.  532.)  A 
party  who  holds  the  bond  of  a  corporation  secured 
by  a  pledge  may  file  a  bill  to  enforce  the  pledge. 
(Valette  v.  W.  V.  Canal  Co.,  4  McLean,  192;  Fed. 
Cas.  No.  16820).  The  distinction  between  actions  at 
law  and  suits  in  equity  in  the  United  States  courts 
is  not  one  of  form  merely,  but  of  vital  substance. 
(Owens  V.  Heidbreder,  41  U.  S.  App.  736;  78  Fed. 
liep.  837;  In  re  Foley,  76  Fed.  Rep.  390.)  Mandamus 
in  a  State  court  to  enforce  the  conveyance  of  real 
property  is  not  such  an  adequate  remedy  at  law  as 
to  bar  the  equitable  jurisdiction  of  a  Federal  court. 
(Provisional  Municipality  v.  Lehman,  13  U.  S.  App. 
411;  57  Fed.  Rep.  323.)  Parties  cannot  by  stipulation 
convert  an  equitable  suit  into  a  legal  one.  (Land 
Trust  of  Indianapolis  v.  Hoffman,  13  U.  S.  App.  411; 
57  Fed.  Rep.  333.)  Discovery  is  not  ordinarily  an 
independent  ground  for  equitable  intervention,  merely 
because  it  is  prayed  for.  (Erskine  v.  Forest  Oil  Co., 
80  Fed.  Rep.  253;  Everson  v.  Equitable  Life  Assur. 
Co.,  68  Fed.  Rep.  258;  Cecil  Nat.  Bank  v.  Thurber,  8 
U.  S.  App.  496;  59  Fed.  Rep."  91.3.)  See  generally  as 
to  Bills  of  Peace,   Scottish  Union  v.   Mohlman  Co., 


827       COMMON  TO  MORE  THAN  ONE  COUKT.    §  243 

73  Fed.  Eep.  66;  creditor's  bill,  Putney  v.  Whit- 
more,  66  Fed.  Rep.  385;  Tompkins  Co.  v.  Catawba 
Mills,  82  Fed.  Rep.  780;  Bacon  v.  Harris,  62  Fed.  Rep. 
99;  Greenwood  A.  &  W.  R.  Co.  v.  Strang,  77  Fed. 
Rep.  498;  Streight  v.  Juulv,  16  U.  S.  App.  608;  59 
Fed.  Rep.  321;  National  Tules  Worlis  v.  Ballou,  146 
U.  S.  517;  accounting,  Hagenbecli  v.  Hagenbeck  Z. 
Arena  Co.,  59  Fed.  Rep.  14.  Tlie  proper  practice, 
where  the  answer  to  a  bill  for  partition  of  real  estate 
entirely  denies  the  title  set  up  by  plaintiff,  is  to  stay 
the  suit  and  send  plaintiff  to  a  court  of  law  to  estab- 
lish his  title.  (Brown  v.  Cranberry  Iron  &  Coal  Co., 
25  U.  S.  App.  679;  72  Fed.  Rep.  96.) 

Equity  jurisdiction. — The  equity  jurisdiction  of  the 
courts  of  the  United  States  is  subject  to  neither  limi- 
tation nor  restraint  by  the  State  authorities,  and  is 
uniform  throughout  the  different  States  of  the  Union. 
(Gamewell  Fire  Alarm  Tel.  Co.  v.  Mayor  etc.,  Cir. 
Ct.  N.  Y.,  31  Fed.  Rep.  312.)  Federal  courts  may  en- 
force on  their  equity  side  new  rights  or  privileges 
established  by  State  or  Territorial  statutes.  (Cow- 
ley V.  Northern  Pac.  Ry.  Co.,  159  U.  S.  569;  Gil- 
christ V.  Helena  Hot  Springs  &  S.  R.  R.  Co.,  58  Fed. 
Rep.  708.)  A  court  of  the  United  States  sitting  in 
equity  cannot  control  a  principal  surveyor  of  a  mili- 
tary district  in  the  discharge  of  his  official  duties, 
or  take  charge  of  the  records  of  his  office,  or  declare 
their  effect  to  be  other  than  what  appears  on  their 
face.  (Fussell  v.  Gregg,  113  U.  S.  550.)  A  court  of 
equity  has  power  to  issue  an  injunction  to  aid  the 
general  government  to  prevent  a  forcible  obstruction 
of  interstate  commerce  and  the  transportation  of  the 
mails  (In  re  Debs,  158  U.  S.  564),  and  may  issue  an 
injunction  to  prevent  a  collector  of  customs  from  de- 
stroying teas,  on  the  ground  of  preventing  a  multi- 
plicity of  suits.  (Sang  Lung  v.  Jackson,  85  Fed.  Rep. 
503.)    The  equity  jurisdiction  of  the  Federal  courts 


§  243  COMMON   TO    MORE    THAX   ONE   COURT.  828 

Will  not  take  cosniznnce  of  a  suit  by  a  colored  per- 
son, to  restrain  officers  of  a  State  from  denying  his 
ri.ffht  to  vote  under  a  State  statute  which  he  claims 
is  in  violation  of  the  amendment  to  the  United  States 
Constitution.  (Gowdy  v.  Green.  69  Fed.  Rep.  SCT,.) 
Courts  of  equity  concern  themselves  only  with  mat- 
ters of  property  and  the  maintenance  of  civil  rights 
and  have  no  jurisdiction  in  matters  of  an  executive 
or  political  nature  (Taylor  v.  Kercheval,  82  Fed. 
Rep.  497);  but  sometimes  a  court  of  equity  will  re- 
strain criminal  proceedings.  (Wadley  v.  Blount,  G5 
Fed.  Rep.  6(37.)  Equity  will  not  enjoin  an  action  at 
law  on  a  note  and  contract  tainted  witli  usury.  (At- 
kinson V.  Allen.  30  U.  S.  App.  255;  71  Fed.  Rep.  58.) 
A  court  of  equity  has  jurisdiction  of  a  suit  against 
the  directors  of  a  national  bank  for  excessive  loans 
in  certain  cases.  (Cockrill  v.  Cooper,  U.  S.  App.  8G 
Fed.  Rep.  7.) 

Injunction.— A  court  of  equity  will  not  interfere 
to  stay  proceedings  in  a  number  of  actions  of  eject- 
ment to  abide  the  result  of  one  (Peters  v.  Prevost,  1 
Paine,  64;  Fed.  Cas.  No.  11032);  nor  wdi  injunction 
issue  to  restrain  a  threatened  trespass  until  it  tends 
to  irreparable  mischief  (Le  Roy  v.  Wright.  4  Sawy. 
530;  Fed.  Cas.  No.  8273;  but  a  denial  of  title  is  no  rea- 
son for  refusing  to  enjoin  a  trespass,  if  the  trespass 
goes  to  the  destruction  of  the  estate.  (United  States 
V.  Parrott,  1  McAll.  271;  Fed.  Cas.  No.  1599S;  Le  Roy 
V.  Wright.  4  Sawy.  530;  Fed.  Cas.  No.  8273;  Buskirk 
v.  King,  25  U.  S.  App.  607;  72  Fed.  Rep.  22;  Perry 
V.  I'arker,  1  Wood  &  M.  280;  Fed.  Cas.  No.  11010.) 
An  injunction  will  issue  to  protect  a  lien  by  attach- 
ment on  property  which  another  person  threatens  to 
sell  under  execution.  (New  York  Com.  Co.  v.  Francis, 
83  Fed.  Rep.  769.)  A  court  will  not  enjoin  a  threatened 
injury  where  there  is  a  plain  and  adequate  remedy  at 
law.     (Parker  v.  W.  L.  C.  &  W.  Co.,  2  Black,  545). 


I 

i 


829  COMMON    TO    MORE   THAN   ONE   COURT.  §  243 

If  the  sheriff  attempts  to  take  pi'operty  from  the  pos- 
session of  the  marshal  under  a  writ  of  replevin, 
he  may  be  restrained  to  prevent  a  conflict  of  juris- 
diction (Crane  v.  McCoy,  1  Bond,  422;  Fed.  Cas.  No. 
33.^4);  but  a  mortgagee  of  personal  property  cannot 
restrain  the  sale  under  execution  (La  Mothe  v.  Finli, 
8  Biss.  493;  Fed.  Cas.  No.  8032);  nor  a  person  whose 
property  is  talvcn  on  execution  against  another  (Van 
Norden  v.  Morton,  99  U.  S.  378);  but  if  it  would  de- 
stroy the  credit  or  brealv  up  the  business  of  the  owner, 
he  may  restrain  the  sale.  (Watson  v.  Sutherland, 
5  Wall.  74.)  Injunction  and  accounting  may  both 
be  granted  in  the  same  suit  in  case  of  trespass  on  a 
mining  claim.  (Consol.  Wyoming  G.  M.  Co.  v.  Cham- 
pion M.  Co.,  63  Fed.  Rep.  540).  Although  an  injunc- 
tion is  sought  to  prevent  another  from  acting  under 
an  agreement,  yet  damages  for  its  breach  cannot  be 
recovered  (La  Mothe  Mfg.  Co.  v.  Nat.  Tube  Works,  15 
Blatchf.  432;  Fed.  Cas.  No.  8083);  but  if  equity  takes 
jurisdiction  it  will  grant  full  relief,  although  the  re- 
lief would  be  as  full  as  at  law.  (Gass  v.  Stinson,  2 
Sum.  453;  Fed.  Cas.  No.  5260;  Warner  v.  Daniels,  1 
Wood  &  M.  90;  Fed.  Cas.  No.  17181;  Pierpont  v, 
Fowle,  2  Wood  &  M.  23;  Fed.  Cas.  No.  11152;  Foster 
V.  Swasey,  2  Wood  &  M.  217;  Fed.  Cas.  No.  4984.) 
The  courts  have  jurisdiction  to  enjoin  an  officer  from 
removing  an  assistant  who  claims  protection  under 
the  civil  service  law.  (Couper  v.  Smyth,  84  Fed. 
Rep.  757;  Butler  v.  White,  83  Fed.  Rep.  578;  Priddie 
V.  Thompson,  82  Fed.  Rep.  186;  contra,  Taylor  v. 
Kercheval,  82  Fed.  Rep.  497;  Flemming  v.  Stahl,  83 
Fed.  Rep.  940.)  A  court  of  equity  will  enjoin  the  en- 
forcement of  a  bid  for  public  works,  induced  by  the 
mistake  of  one.  (Moffett  v.  City  of  Rochester,  82 
Fed.  Rep.  255.)  An  injunction  was  granted  to  re- 
straia  ticket  scalpers  from  continuing  in  business. 
(Nashville  C.  &  St.  L.  Ry.  Co,  v.  McConnell,  82  Fed, 
Fed.  Peoc— 70. 


§  244  COMMON    TO    MOKE    THAN   ONE   COURT.  830 

Rep.  G5.)  Inconvenieuce  of  the  public  in  stopping  the 
running  of  electric  cars  is  not  sulficient  ground  to 
require  the  refusal  of  an  injunction.  (Thomson- 
Houston  El.  Co.  V.  Union  Ry.  Co.,  78  Fed.  Rep.  365.) 
An  injunction  was  granted  to  restrain  defendants 
from  organizing  a  boycott  or  strike  in  the  following 
cases:  (iMackall  v.  Ratchford,  82  Fed.  Rep.  41;  Hop- 
kins V.  Gxley  Stave  Co.,  49  U.  S.  App.  709;  83  Fed. 
Rep.  912;  Oxley  Stave  Co.  v.  Coopers'  Int.  Union,  72 
Fed.  Rep.  695;  Consolidated  Steel  &  W.  Co.  v.  Mur- 
ray, SO  Fed.  Rep.  811.)  A  Federal  court  will  enjoin 
the  sale  of  real  estate  belonging  to  a  national  bank 
in  certain  cases.  (Brown  v.  French,  80  Fed.  Rep. 
166.)  An  injunction  may  issue  from  a  Federal  court 
to  restrain  an  army  officer  from  committing  a  tres- 
pass on  lands  where  he  justified  his  proposed  action 
on  the  ground  that  he  is  simply  obeying  the  orders  of 
his  superiors  (La  Chapelle  v.  Bubb,  69  Fed.  Rep.  481); 
and  the  writ  will  issue  where  a  goveinmeutal  em- 
ployee has  inteiTupted  the  usual  course  of  business  of 
his  office  and  threatens  to  continue  such  interruption. 
(Fairfield  Floral  Co.  v.  Bradbury,  87  Fed.  Rep.  415.) 
The  Federal  courts  will  not  enjoin  the  performance 
by  an  executive  officer  of  discretionary  acts.  (Enter- 
prise Sav.  Assn.  v.  Zumstein,  37  U.  S.  App.  71;  67 
Fed.  Rep.  lOOO;  Lane  v.  Anderson,  67  Fed.  Rep.  563.) 

§  244  (724).  Power  to  order  production  of 
books  and  writings  in  actions  at  law. — In  the  trial 
of  actions  at  law,  the  courts  of  the  United  States 
may,  on  motion  and  due  notice  thereof,  require  the 
parties  to  produce  books  or  writings  in  their  pos- 
session or  power  which  contain  evidence  pertinent 
to  the  issue,  in  cases  and  under  circumstances 
where  they  mi<i'ht  })e  compelled  to  produce  the 
same  by  the  ordinary  rules  of  proceeding  in  chan- 


831  COMMON    TO    MORE    TIIAX   ONE   COfRT.  §  244 

eery.  If  a  plaintiff  fails  to  comply  with  such  or- 
der, the  court  may,  on  motion,  give  the  like  judg- 
ment for  the  defendant  as  in  cases  of  nonsuit;  and 
if  a  defendant  fails  to  comply  Avith  such  order,  the 
court  may,  on  motion,  give  judgment  against  him 
by  default.     (Eev.  Stats,  sec.  724.) 

Production  of  Books  or  Writings.— Section  seven 
hundred  and  twenty-four,  Revised  Statutes,  lim- 
its the  remedy  to  cases  where  issue  is  joined. 
(Jacques  v.  Collins.  2  Blatchf.  23;  Fed.  oas.  No,  7167); 
United  States  v.  Button,  25  Int.  Rev.  Ree.  37;  Fed. 
Cas.  No.  15434.)  It  does  not  talie  away  the  right  to 
relief  by  bill  of  discovery  except  where  the  remedy  is 
given.  (United  States  v.  Hutton,  10  Ben.  2G9;  Fed. 
Cas.  No.  15433;  Bryant  v.  Layland,  6  Fed.  Rep.  127). 
Its  provisions  extend  to  proceedings  in  rem  to  en- 
force a  forfeiture  (United  States  v.  Barrels,  10  Int. 
Rev.  Rec.  205;  but  see  United  States  v.  Packages, 
Gilp.  306;  Fed.  Cas.  No.  16561);  and  to  cases  in  bank- 
ruptcy. (In  re  Meudeuhall,  9  Bank  Reg.  205;  Fed. 
Cas.  No.  9423.)  The  order  can  be  made  only  in  cases 
where  relief  might  have  been  had  by  bill  of  discov- 
ery (Finch  V.  Rikeman,  2  Blatchf.  301;  Fed.  Cas.  No. 
4788) ;  and  that  a  bill  of  discovery  has  been  tiled  is  no 
bar  to  the  motion  (lasigi  v.  Brown.  1  Curt.  401;  Fed. 
Cas.  No.  6993),  nor  that  a  copy  of  the  paper  has  been 
filed  in  answer  to  the  bill  of  discovery  (lasigi  v. 
Brown,  1  Curt.  401;  Fed.  Cas.  No.  6993),  unless 
the  discovery  has  been  completely  effectual  (lasigi 
V.  Brown,  1  Curt.  401;  Fed.  Cas.  No  6993);  but  it 
does  not  apply  in  cases  where  a  subpoena  duces 
tecum  issues  to  compel  a  witness  to  produce  papers. 
(United  States  v.  Babcock,  3  Dill.  566;  Fed.  Cas. 
No.  14484;  Merchants'  Nat.  Bank  v.  State  Nat. 
Bank,  3  Cliff.  20;  Fed.  Cas.  No.  9448.)  The  power 
given  in    this    section    includes    power  to    grant  aa 


§  244  COMMON    TO    MORE    THAN   ONE   COURT.  832 

inspection  before  trial  with  permission  to  make 
copies.  (Excbiinge  Nat.  Banli  v.  Washita  Cattle  Co., 
61  Fed.  Rep.  190;  Lucker  v.  Phoenix  Assnr.  Co.,  67 
Fed.  Rep.  18.)  In  requiring  the  production  of  books 
or  writing  in  evidence,  Federal  courts  are  governed 
by  this  section,  and  not  by  the  provisions  of  State 
statutes.  (Gregory  v.  Chicago  M.  &  vSt.  P.  R.  Co., 
10  Fed.  Rep.  529.)  The  formalities  of  a  bill  of  discov- 
ery ai-e  not  requisite;  a  mere  motion  with  notice  to 
the  opposite  party,  and  a  description  of  the  books  or 
papers  with  sufficient  certainty,  is  suliicient. 
(Jacques  v.  Collins.  2  Blatchf.  23;  Fed.  Cas.  No.  7167; 
and  where  letters  are  described  by  their  subject  mat- 
ter it  is  sufficiently  explicit.  (Vasse  v.  Miffiin.  4 
Wash.  C.  C.  519,  Fed.  Cas.  No.  16895.)  The  appli- 
cant must  show  that  the  paper  exists,  that  it  is  in 
possession  of  the  party,  and  that  it  is  pertinent  to  the 
issue.  (Triplett  v.  Bank  of  Wash.  3  Cranch  C.  C. 
646;  Jacques  v.  Collins,  2  Blatchf.  23;  Fed.  Cas.  No. 
7167;  lasigi  v.  Brown,  1  Curt.  401;  Fed.  Cas.  No. 
6993;  Bas  v.  Steele,  3  Wash.  C.  C.  381;  Fed.  Cas.  No. 
1088.)  The  complainant  in  a  patent  infringement 
suit  cannot  require  the  production  of  all  the  books  of 
a  large  business.  (Fuller  v.  Field,  53  U.  S.  App.  566; 
82  Fed.  Rep.  813.)  An  ex  parte  affidavit  is  sufficient 
(U.  S.  V.  Packages,  Gilp.  306,  Fed.  Cas.  No.  16561); 
a  motion  is  requisite  (Thompson  v.  Selden,  20  How. 
194;  May  v.  Carbery,  2  Cranch  C.  C.  336,  Fed.  Cas. 
No.  9339;  Bank  of  United  States  v.  Kurtz,  2  Cranch 
C.  C.  342,  Fed.  Cas.  No.  920;  Macomber  v.  Clarke,  3 
Cranch  C.  C.  347,  Fed.  Cas.  8918;  Bas  v.  Steele,  3 
Wa.sh.  C.  C.  381.  Fed.  Cas.  No.  1(XS8);  and  it  may  be 
made  before  the  day  of  trial  (Central  Bank  v.  Tayloe, 
2  Cranch  C.  C.  427,  Fed.  Cas.  No.  2.'')48;  lasigi  v. 
Brown,  1  Curt.  401,  Fed.  Cas.  No.  6993;;  and  notice 
to  the  partj'  required  to  produce  the  books  or  writings 
must  be  given  (Maye  v.  Carbery,  2  Cranch  C.  C.  336, 


833  COMMON    TO   MORE    THAN    OIVE   COURT.  §  344 

Fed.  Cas.  No.  9339;  Thompson  v.  Selden,  20  How. 
195;  Bas  v.  Steele,  3  Wash.  C.  C.  381;  Fed.  Cas.  No. 
1088);  and  it  must  contain  information  that  a  motion 
will  be  made  for  a  non-suit  or  for  judgment  by  de- 
fault. (Bas  V.  Steele,  3  Wash.  C.  C.  381;  Fed.  Cas. 
No.  1088.)  It  may  be  given  to  the  party  or  to  his  at-, 
torney  (Geyger  v.  Geyger,  2  Dall.  332;  U.  S.  v.  Bar- 
rels, 10  Int.  Key.  Rec.  205);  and  must  be  reasonable 
(Macomber  v.  Clarke,  3  Cranch  C.  C.  347;  Fed.  Cas. 
No.  8918);  for  an  order  will  not  be  made  at  the  trial 
on  motion  without  notice.  (Sampson  v.  Johnson,  2 
Cranch  C.  C.  107;  Fed.  Cas.  No.  12281;  Bank  of  U. 
S.  V.  Kurtz,  2  Cranch  C.  C.  342;  Fed.  Cas.  No.  920). 
If  not  reasonable  the  trial  may  be  postponed  to  give 
the  party  an  opportunity  to  procure  the  evidence. 
(Geyger  v.  Geyger,  2  Dall.  332;  Bank  of  U.  S.  v, 
Kurtz,  2  Cranch  C.  C.  342;  Fed.  Cas.  No.  920.)  The 
power  to  grant  the  motion  is  discretionary,  but  should 
be  firmly  exercised  in  a  proper  case.  (Merchant's 
Nat.  Bk.  V.  Stat.  Nat.  Bk.,  3  Cliff.  201;  Fed.  Cas.  No. 
9448).  The  court  may  at  once  either  refuse  the  mo- 
tion or  make  the  rule  absolute  (Dunham  v.  Riley,  4 
Wash.  C.  C.  120;  Fed.  Cas.  No.  4155);  and  where  an 
intent  to  conceal  or  destroy  the  books  or  papers  is 
shown  the  order  should  be  made  without  delay,  and 
absolute;  but  if  there  is  no  suggestion  of  fraudulent 
intent,  and  the  evidence  as  to  their  pertinency  is  not 
satisfactory,  the  oi'der,  if  made  at  all,  should  be  made 
nisi.  (Merchant's  Nat.  Bk.  v.  Stat.  Nat.  Bk.,  3  Cliff. 
201;  Fed.  Cas.  No.  9448.)  The  order  need  not  be  ab- 
solute, but  may  leave  the  party  to  show  cause  at  the 
trial.  (Merchant's  Nat.  Bank  v.  State  Nat.  Bank,  3 
Clifif.  201;  Fed.  Cas.  No.  9448;  lasigi  v.  Brown,  1 
Curt.  401;  Fed.  Cas.  No.  0993;  Dunham  v.  Riley,  4 
Wash.  C.  C.  120;  Fed.  Cas.  No.  4155.)  Where  the 
motion  is  made  before  trial  the  order  must  require 
the  production  of  the  books  at  the  trial  (Merchant's 


§  244  COMMON    TO    MORE    TUAN   ONE   COUKT.  834 

Nat.  Bank  v.  State  Nat  Bank,  3  Cliff.  201 ;  Fed.  Cas. 
No.  9448;  lasigi  v.  Brown,  1  Curt.  401;  Fed.  Cas.  No. 
6993;  but  see  Central  Bank  v.  Tayloe,  2  Crancli  C.  C. 
427;  Fed.  Cas.  No.  2548);  and  it  may  require  liim  to 
produce  them  and  leave  tliem  with  the  clerk,  or  fur- 
nish copies  to  the  adverse  party  (Jacques  v.  Collins, 
2  Blatchf.  23;  Fed.  Cas.  No.  7107);  but  the  word  "re- 
quire" does  not  include  the  i>ower  to  compel  compli- 
ance (Merchant's  Nat.  Bank  v.  State  Nat.  Bank,  3 
Cliff.  201;  Fed.  Cas.  9448);  as  the  penalty  for  failure 
to  produce  a  paper  is  nonsuit  or  default  (lasigi  v. 
Brown,  1  Curt.  401;  Fed.  Cas.  No.  6993);  and  a  mo- 
tion for  non-pros  for  failing  to  produce  may  be  made 
even  after  the  jury  is  sworn.  (Waller  v.  Stewart,  4 
Cranch  C.  C.  532;  Fed.  Cas.  No.  17109.)  A  party 
cannot  be  compelled  to  produce  a  paper  which  would 
subject  him  to  a  penalty  or  a  forfeiture.  (Finch  r. 
Kikeman,  2  Blatchf.  301;  Fed.  Cas.  No.  4788;  U.  S. 
V.  Packages,  Gilp.  306;  Fed.  Cas.  No.  16561;  U.  S.  v. 
Nat.  Lead  Co.,  75  Fed.  Rep.  94).  The  order  must  be 
served  a  reasonable  time  before  the  production  of  the 
paper  is  required.  (Macomber  v.  Clarke,  3  Cranch 
C.  C.  347;  Fed.  Cas.  No.  8918.)  It  is  premature  be- 
fore the  jury  are  sworn  and  the  trial  commenced  for 
either  party  to  call  upon  the  other  to  produce  a  paper 
which  he  has  received  notice  to  produce  on  the  trial. 
(Hylton  V.  Brown,  1  Wash.  C.  C.  298;  Fed.  Cas.  No. 
6981.)  He  has  no  right  to  examine  them  before 
trial  to  discover  if  there  is  in  them  anything  perti- 
nent to  the  issue  (Triplett  v.  Bank  of  Washington,  3 
Cranch  C.  C.  i'Aii;  Fed.  Cas.  No.  14178);  but  the  books 
must  be  produced  at  the  trial  or  an  excuse  given 
under  oath  for  not  producing  them  (U.  S.  v.  Barrels, 
10  Int.  Kev.  Kec.  205),  so  he  may  make  an  oath  that 
they  are  not  in  his  possession  (U.  S.  v.  Packages, 
Gilp.  306;  Fed.  Cas.  No.  16561);  and  such  oatli  may 
be  met  by  contrary  proof.     (Bas  v.  Steele,  3  Wash. 


835       COMMON  TO  MORE  THAN  ONE  COUBT.    §  244 

C.  C.  381;  Fed.  Cas.  No.  1088.)  A  petition  by  a  stock- 
holder of  an  insolvent  company  to  inspect  a  mine  with 
a  view  to  having  the  receiver  removed  is  in  the  na- 
ture of  a  motion  made  for  the  production  by  parties 
of  books  or  writings  in  their  possession.  (Henszey  v. 
Langdon-Heuszey  Coal  M.  Co.,  80  Fed.  Hep.  178).  If 
the  omission  to  produce  the  books  arose  from  over- 
sight, the  case  may  be  postponed  to  allow  time  to  pro- 
cure the  affidavit  of  the  party.  (U.  S.  v.  Barrels,  10 
Int.  Kev.  Rec.  205.)  If,  by  affidavit,  he  explains  how 
the  paper  came  into  his  possession,  the  court  may 
order  the  affidavit  put  in  evidence  with  the  paper. 
(Bank  of  U.  S.  v.  Wilson,  3  Cranch  C.  C.  213;  Fed. 
Cas.  No.  943).  If  a  party  inspects  a  book  after  its 
production  it  may  be  used  as  evidence  by  the  ad- 
verse party.  (Waller  v.  Stewart,  4  Cranch  C.  C.  532; 
Fed.  Cas.  No.  17109).  After  removal  of  a  cause  from 
a  State  Court,  the  Circuit  Court  should  enforce  an 
order  made  in  the  State  court  for  the  production  of 
books  or  papers.  (Williams  Mower  Co.  v.  Raynor,  7 
Biss.  245;  Fed.  Cas.  No.  17748j.  This  section  applies 
as  weU  to  cases  arising  under  the  revenue  laws  (U.  S. 
V.  Hughes,  12  Blatchf.  553;  Fed.  Cas.  No.  15417;  U.  S. 
V.  Distillery,  6  Biss.  483;  Fed.  Caa.  No.  14966),. as  in 
a  proceeding  to  enforce  a  forfeiture  under  these  laws. 
(U.  S.  V.  Mason,  6  Biss.  350;  Fed.  Oas.  No.  15775). 
There  is  nothing  in  this  section  to  prevent  Govern- 
ment from  seizing  and  examining  the  books  of  a  dis- 
tiller to  ascertain  some  fact  that  will  sustain  a 
charge.  (U.  S.  v.  Mason,  6  Biss.  350;  Fed.  No.  15735). 
A  description  is  sufficient  which  calls  for  the  produc- 
tion of  books  and  papers  of  a  certain  business  be- 
tween specified  dates.  (U.  S.  v.  Distillery,  6  Biss. 
483;  Fed.  Cas.  No.  14966;  U.  S.  v.  Three  Tons,  6  Biss. 
379;  Fed.  Cas.  No.  16515).  Plaintiff  Is  not  entitled 
under  this  section  to  an  order  for  the  production  by  a 
defendant  before  trial  of  private  books  of  account 
for  plaintiff's  inspection  on  an  affidavit  merely  stating 


§  245  COil.MOX    TO    MORE    THAN    ONE   COURT.  S36 

that  affiant  "believes"  that  such  books  will  tend  to 
prove  the  issues,  without  stating  any  grounds  for 
such  belief.     (Caspary  r.  Carter,  84  Fed.  Kep.  41G.) 

§  245  (725).  Power  to  impose  oaths  and  punish 
contempts. — The  said  courts  sliall  have  power  to 
impose  and  administer  all  necessary  oaths,  and  to 
punish,  by  fine  or  imprisonment,  at  the  discretion 
of  the  court,  contempts  of  their  authority;  'pro- 
vided, that  such  power  to  punish  contempts  sliall 
not  be  construed  to  extend  to  any  cases  except  the 
misbehavior  of  any  person  in  their  presence,  or  so 
near  thereto  as  to  obstruct  the  administration  of 
justice,  the  misbehavior  of  any  of  the  officers  of 
said  courts  in  their  official  transactions,  and  the 
disobedience  or  resistance  by  any  such  officer,  or 
by  any  party,  Juror,  witness,  or  other  person,  to 
any  lawful  writ,  process,  order,  rule,  decree,  or 
command  of  the  said  courts.  (Rev.  Stats,  sec. 
725.) 

Dispbedience  or  resistance  to  orders,  etc  -The  ex- 
ercise of  the  power  to  punish  for  the  disobedience  of 
an  order  has  a  two- fold  aspect:  first,  to  punish  for 
disi'espect  of  the  court,  and  second,  to  compel  per- 
formance of  the  duty  requii-ed;  in  the  first  case  the 
court  must  judge  for  itself  as  to  the  punishment;  in 
the  latter  the  party  should  be  imprisoned  till  he  per- 
forms the  act  retiuir(Hl  (In  re  Chiles.  SI  Wall.  LIT.) 
and  the  Federal  court  may  commit  for  contempt,  al- 
though it  has  not  jurisdiction  over  the  cause. 
(Williamson's  Case,  20  Pa.  St.  9.)  Where  the  order 
is  in  effect  a  final  judgment  for  payment  of  money, 
the  powei*  of  the  court  cannot  be  enforced  (In  re 
Atlantic  Mut.  Ins.  Co.,  17  Bank.  Reg.  3G8;  Fed.  Oas. 
No.  ()2U;  The  Blanche  Page,  10  Blatchf.  1;  Fed.  Oas. 


837  COMMON    TO    MORE    THAN    ONE   COUET.  §  245 

No.  1524);  and  a  person  who  merely  interferes  with 
property  constructively  attached  cannot  be  proceeded 
against.     (Steam   Stone  Cut  Co.  v.   Windsor  Manuf. 
Co.  3  Fed.  Rep.  2'J8.)     An  interpreter  or  expert  refus- 
ing to  obey  a  summons  will  not  be  committed  except 
in  case  of  necessity.     (In  re  Roelker,  1  Sprague,  270; 
Fed.  Ca.s.  No.  11995.)     The  power  to  summon  a  wit- 
ness carries  with  it  the  power  to  enforce  obedience; 
and  if  he  lives  within  a  hundred  miles  of  the  court, 
he  may    be  attached    for    contempt  for    refusing  to 
obey  the  subpoena  (Voss  v.  Luke,  1  Cranch  G.  C.  331; 
Fed.    Cas.    No.    17014;  Hodgson   v.    Butts,    1   Cranch. 
C.  C.  447;  Fed.  Cas.  No.  65G3;  Somerville  v.  French, 
1    Oranch    C.   C.  474;  Fed.    Gas.   No.    13173;  United- 
States  V.  Williams,  4  Cranch  C.  C.  872;  Fed.  Cas.  No. 
16712;  see  Woods  v.  Young,  1  Cranch  C.  G.  346;  Fed. 
Cas.  No.  17994;  Park  v.  Willis,  1  Cranch  C.  C.  357; 
Fed.  Cas.  No.  10716;  Lewis  v.  Mandeville.  1  Cranch 
C.  C.  360;  Fed.  Cas.  No.  8326;  Ex  parte  Pleasants, 
4    Cranch    O.   C.  314;  Fed.    Cas.    No.   11225;  United 
States  V.  Jacobi,  4  Am.  L.  T.  148.)     He  may  be  at- 
tached for  contempt,   although  he  lives   out  of   the 
district  (United  States  v.   Williams,  4  Cranch  C.   G. 
372;  Fed.    Cas.    No.    16712);  but   sickness   of   himself 
or  family    will  be  an  excuse  (Ex    parte    Beebees,  2 
WaU.   Jr.    127;  Fed.    Cas.    No.    1220);  or   in   ease   of 
great  inconvenience.     (Ex    parte    Beebees,   2    Wall. 
Jr.    127;  Fed.    Cas.  No.  1220.)     A    restraining    order 
must  be    obeyed  in  its    entirety    until  modified;  the 
fact  that  respondents  were  acting  under  advice  of 
counsel   may   mitigate   but   will  not   obviate   punish- 
ment   (Pokegama    Sugar    Pine    L.   Co.    v.    Klamath 
River  L.  &  I.  Co.,  86  Fed.  Rep.  538;  Ulman  v.  Ritter, 
72  Fed.  Rep.  1000.)     A  person  may  be  bound  by  an 
injunction  though  he  is  not  a  party  to  the  suit,  and 
though    not    served    with    an   injunction    order  (Ex 
parte  Lennon,  22  U.  S.  App.  561;  54  Fed.  Rep.  320.) 


J;  245  COMMON    TO    MORE    THAN   ONE   COURT.  83S 

Actual  notice  of  an  injunction  makes  it  binding 
upon  a  party  though  he  is  not  served.  (Ulman  v. 
Hitter,  72  Fed.  Rep.  1000.)  It  is  a  violation  of  an  in- 
junction against  a  partnership  for  the  members  to 
do  the  acts  in  their  capacity  as  servants  of  others  a» 
■well  as  in  their  individual  capacity  (Daderrian  v. 
Gullian,  79  Fed.  Rep.  784.)  Though  a  person  is  not 
named  in  an  injunction  it  becomes  binding  as  agalnsi 
him  if  served  on  him  as  one  of  the  unliuown  defend- 
ants (United  States  v.  Agler,  62  Fed.  Rep.  824.) 
Petition  and  rule  for  attachment  is  a  proper  method 
to  pursue  in  a  proceeding  for  contempt  in  disobeying 
an  order  of  court,  although  not  the  only  remedy;  and 
'  when  a  copy  of  such  petition  is  served  on  defendant 
six  days  is  sufficient  time  to  answer  or  get  an  ex- 
tension of  time  to  answer.  (American  Const.  Co.  v. 
Jacksonville  T.  &  K.  W.  Ry.  Co.,  52  Fed.  Rep.  937.) 
Refusal  to  attend  court  in  obedience  to  a  subpoena 
is  a  conlempt  (Carman  v.  Emerson,  36  U.  S.  App. 
388;  71  Fed.  Rep.  2&4.) 

Contempt. — For  a  discussion  of  the  nature  and 
classes  of  contempts,  and  motive  as  an  eleujent,  see 
(Indianapolis  Water  Co.  v.  American  Strawboard 
Co.,  75  Fed.  Rep.  972.)  The  power  to  punish  for  con- 
tempt is  incidental  and  necessary  to  the  exercise  of 
all  other  powers.  (United  States  r.  Hudson,  7 
Oranch,  32;  United  States  v.  New  Bedford  Bridge, 
1  Wood.  &  M.  401;  Fed.  Ojs.  No.  15807.)  A  con- 
tempt of  court  is  a  crime  against  the  United  States 
(United  States  v.  Jacobi,  4  Am.  L.  T.  148);  and  if 
willful  may  be  dealt  with  by  indictment.  (United 
States  V.  .Tacobi.  4  Am.  L.  T.  148.)  This  section  ap- 
plies to  the  circuit  and  district  courts.  (Ex  parte- 
Robinson.  19  ^^^•lll.  5(K;.)  The  power  to  commit  for 
contempt  Is  limited  to  cases  whei'e  there  has  been 
misbehavior  in  pre<;ence  of  the  court,  or  of  any  oilicer 
of    the  court    In  his    official    transactions,  or    where- 


839       COMMON  TO  MOKE  THAX  ONE  COURT.    §  245 

there  is  a  resistance  to  any  lawful  writ,  proceoS, 
order,  decree,  or  command  of  the  court.  (Ex  parte 
Robinson  19  Wall.  506;  Bridges  v.  Sheldon,  18 
Blatchf.  518.)  A  proceeding  for  contempt  cannot  be 
re-examined  on  appeal  or  writ  of  error.  (Hayes  v. 
Fischer,  102  U.  S.  121.)  This  section  is  a  limitation 
upon  the  manner  in  which  the  power  to  punish  for 
contempt  shall  be  exercised.  (Ex  parte  Robinson,  19 
Wall.  506.)  The  circuit  courts  have  power  to  pun- 
ish for  contempt  for  any  disobedience  or  resistance 
by  any  such  officer,  or  by  any  party,  juror,  witness; 
or  other  person,  to  any  lawful  writ,  process,  order, 
rule,  decree  or  command  of  the  said  courts  (R.  S. 
sec.  725;  1  Stat.  83;  4  Stat.  487;  In  re  Terry,  289 
U.  S.  287.)  The  right  of  a  citizen  of  one  State  to 
institute  proceedings  in  a  United  States  circuit  court 
situated  in  another  State  to  punish  for  contempt  citi- 
zens of  the  latter  State  who  have  disobeyed  a  de- 
cree of  such  court  in  the  enforcement  of  which  the 
petitioner  has  an  interest,  is  a  right  secured  by  the 
constitution  and  laws  of  the  United  States  within 
the  meaning  of  U.  S.  Rev.  Stats,  sees.  5508,  5509, 
which  provides  a  punishment  for  conspiring  to  in- 
jure, oppress,  threaten,  or  intimidate  a  person  in  the 
exercise  of  such  rights.  (United  States  v.  Lancaster, 
10  Ij.  R.  a.  317;  see  Ex  parte  Yai'brough,  110  U.  S. 
651; United  States  v.  Lancaster,  44  Fed.  Kep.  885,  SOU.) 
A  sheriff  who  levies  upon  property  in  possession  of 
a  Federal  court,  and  continues  to  detain  the  property 
contrary  to  the  order  of  the  court,  is  guilty  of  con- 
tempt and  is  liable  to  punishment  therefor  (Ex  parte 
Tyler,  149  U.  S.  164;  Sabin  v.  Fogarty,  70  Fed.  Rep. 
482;  Ex  parte  Hudel^oper,  55  Fed.  Rep.  709);  but  a 
sheriff  Is  not  guilty  of  contempt  in  levying  upon 
goods  which  have  passed  out  of  the  custody  of  the 
Federal  court  (Animarium  Co.  v.  Bright.  82  Fed.  Rep. 
197.)    It  is  a  contempt  to  bring  an  action  at  law  to 


§  245  COMMON    TO    MOKE    THAN   ONE   COURT.  840 

recover  the  same  rents  and  profits  where  an  inter- 
locutoi-y  decree  has  been  rendered  for  complaituint, 
and  the  cause  remanded  to  a  master  for  an  account- 
ing of  rents  and  profits  (Garner  v.  Second  National 
Bank,  33  U.  S.  App.  91;  67  Fed.  Rep.  833.)  A  Fed- 
eral court  has  no  jurisdiction  to  punish  as  a  con- 
tempt an  act  of  disobedience  to  an  order  which  the 
court  intended  to  malie  but  which  was  never  en- 
tered; or  an  act  in  violation  of  a  stipulation  in  open 
court.  Neither  can  the  court  make  so  punishable  an 
act  not  forbidden  by  an  ordei-  or  decree  at  the  time 
it  was  committed,  by  afterward  entering  a  nunc  pro 
tunc  order  forbidding  such  act  (Ex  parte  Buskirk,  2.5 
U.  S.  App.  G13;  72  Fed.  Rep.  14.)  It  is  a  contempt 
of  court  to  unlawfully  impede  or  prevent  a  receiver 
of  a  railroad  from  complying  with  an  order  of  the 
court  in  running  the  road  (Thomas  v.  Cincinnati 
N.  O.  &  T.  P.  Rj-.  Co.,  62  Fed.  Rep.  803.) 

In  presence  of  the  court. — It  is  a  contempt  of 
court  for  a  person  acquitted  of  a  crime  to  threaten 
vengeance  on  a  witness  within  the  possible  hearing 
of  the  court  (United  States  v.  Carter,  3  Cranch  C.  C. 
423;  Fed.  Cas.  No.  14740);  or  to  use  abusive  language 
in  the  courtroom  (United  States  v.  Emerson,  4 
Cranch  C.  C.  188;  Fed.  Cas.  No.  15050);  or  to  com- 
mit an  assault  and  battery  at  the  enti'ance  to  the 
courtroom  (United  States  v.  Emerson.  4  Ci'anch  C.  C. 
18S:  Fed.  Cas.  No.  15050);  or  for  a  witness  to  refuse 
to  be  sworn  according  to  law  (United  States  v.  Cool- 
idge.  2  Call.  3G4;  Fed.  Cas.  No.  14858);  or  to  refuse 
to  answer  a  question  and  misbehave  before  the  jury 
(United  States  v.  Caton,  1  Cranch  C.  G.  150;  Fed. 
Cas.  No.  14758;  but  it  is  not  a  contempt  to  serve  a 
summons  on  a  suitor  while  he  is  in  actual  or  con- 
structive presence  of  the  court.  (Blight  v.  Fisher, 
Feters  C.  G.  41;  Fed.  Cas.  No.  1542.)     It  is  contempt 


S41  COMMON   TO    MORE   THAJST   ONE   COURT.  §  245 

to  bribe  a  person  who  is  a  material  witness,  to  hide 
himself  and  remain  away,  thereby  preventing  his 
testifying  in  a  case,  whether  such  person  has  been 
subpoenaed  or  not,  the  act  of  bribeiy  being  a  con- 
tempt committed  "so  near,"  to  the  court  "as  to  ob- 
struct or  impede  the  due  administration  of  justice" 
(In  re  Brule,  71  Fed.  Rep.  945.) 

Out  of  presence  of  court. — If  an  officer  does  not 
obey  an  order  directing  him  to  pay  over  money  re- 
ceived in  his  official  capacity,  it  is  a  contempt  of 
court.  (In  re  Pittman,  1  Curt.  186;  Fed.  Cas.  No. 
111&4;  Bagley  v.  Yates,  3  McLean.  465;  Fed.  Cas. 
No.  725.)  So  where  money  is  collected  by  a  deputy 
marshal  ex  officio  (The  Lawrens,  1  Abb.  Adm.  508; 
Fed.  Cas.  No.  8122;  United  States  v.  Mann,  2  Brock. 
9;  Fed.  Cas.  No.  15716;  Bagley  v.  Yates,  3  McLean, 
465;  Fed.  Cas.  No.  725);  but  the  marshal  is  not  re- 
si)onsible  (Bagley  v.  Yates.  3  McLean,  465;  Fed.  Cab. 
No.  725);  and  if  proceedings  are  instituted  for  fees 
collected  by  an  officer,  his  claim  for  fees  for  services 
rendered  may  be  set  off.  (United  States  v.  Mann, 
2  Brock.  9;  Fed.  Cas.  No.  15716.)  If  an  attorney  col- 
lects money  for  his  client  and  refuses  to  pay  it  over, 
he  is  liable  for  contempt  (In  re  Paschal,  10  Wall. 
483);  but  if  he  has  cross-demands,  and  has  not  acted 
dishonestly,  he  is  not  liable  (In  re  Paschal.  10  Wall. 
483),  and  courts  cannot  disbar  him  for  the  contempt, 
but  may  do  so  for  misconduct.  (Ex  parte  Robinson, 
19  Wall.  506.)  A  person  summoned  as  a  .iuror.  ex- 
pressing an  opinion  for  the  purpose  of  disqualifying 
himself,  is  guilty  of  contempt  (United  States 
Devaughan,  3  Cranch  C.  C.  84;  Fed.  Cas.  No.  14952); 
or  for  disobeying  orders  of  court  as  to  conversing 
with  others  about  the  case  (In  re  May.  1  Fed.  Rep. 
737);  or  for  escaping  out  of  a  window  of  the  jury- 
room.  (Oft'utt  V.  Parrott.  1  Cranch  C.  C.  154;  Fed. 
Cas.  No.  10453.) 
Fed.  Proc— 7L 


§§  246   247  COMMON   TO   more   than   one   COIKT.  84J 

§  246.  Occupants  of  lands,  remedies  for  im- 
provements.— \\'hen  an  occupant  of  land,  having 
color  of  title,  in  good  faith  has  made  valuable  im- 
provements thereon,  and  is,  in  the  proper  action, 
found  not  to  he  the  rightful  owner  thereof,  such 
occupant  shall  be  entitled  in  the  federal  courts  to 
all  the  rights  and  remedies,  and,  upon  instituting 
the  proper  proceedings,  such  relief  as  may  be  given 
or  secured  to  him  by  the  statutes  of  the  State  or 
Territory  where  the  land  lies,  although  the  title  of 
the  plaintiff  in  the  action  may  have  been  granted 
by  the  United  States  after  said  improvements  were 
so  made.  [Approved  June  1,  1874.]  (18  U.  S. 
Stats.  50.     See  Eev.  Stats,  sec.  121.) 

§247  (726).  New  Trials.— All  of  the  said 
courts  shall  have  power  to  grant  new  trials  in  cases 
whore  there  has  been  a  trial  by  jury,  for  reasons  for 
which  new  trials  have  usually  been  granted  in  the 
courts  of  law.     (Rev.  Stats,  sec.  726.) 

Granting  of  new  trials. — This  soction  relates  only 
to  cases  wliere  there  lias  been  a  trial  by  jurj-;  in 
other  cases  State  laws  may  give  additional  reme- 
dies. (Clark  V.  Sohier.  1  Wood.  &  M.  368;  Fed.  Cas. 
No.  2835.)  A  new  trial  will  not  be  gi-anted  upon 
the  sroimd  of  newly  discovered  evidence,  where  the 
party  had  lieard  rumors  which  If  followed  up  would 
have  led  to  a  discovery  of  the  evidence  before 
trial,  or  where  the  new  evidence  would  be  merely 
cumulative  (Wrijrht  v.  Southern  Ex.  Co.,  80  Fed. 
Rep.  85).  A  verdict  in  favor  of  a  party  whose  con- 
duct was  calculated  to  improperly  influence  the 
j\u-y  upon  a  material  (luestion  should  be  set  aside 
and    a  new    trial  gi'anted  on  the  ground  of  public 


843         COMMON    TO   MORE    THAN   ONE   COURT.    §§  248-249 

policy  (Preston  v.  Mutual  Life  Ins.  Co.  of  N.  Y.,  71 
Fed.  Eep.  4€7).  A  circuit  court  will  not  gi'ant  a 
new  trial  because  one  of  the  juroi-s  was  a  nonresi- 
dent of  the  district,  which  fact  was  not  disclosed 
at  the  trial  (Fisher  v.  Yoder,  53  Fed.  Rep.  565).  An 
application  to  file  a  bill  of  reriew  on  the  ground  of 
newly  discovered  evidence  will  not  be  gi'auted  un- 
less the  evidence  is  so  controlling  that  it  would 
probably  induce  a  different  conclusion  than  that  on 
which  the  former  decree  was  based  (Jourolmon  v. 
Ewing,  85  Fed.  Rep.  103).  A  new  trial  will  usually 
be  granted  where  a  party,  without  laches  on  his 
part,  loses  the  benefit  of  his  exceptions  through  the 
death  or  illness  of  a  judge  (Hume  v.  Bowie,  14S 
U.  S.  245).  Refusal  to  grant  a  new  trial  is  not 
reviewable,  see  ante  §  177,  p.  661. 

§  248  (727).  Power  to  hold  to  security  for  the 
peace  and  good  behavior. — The  judges  of  the  su- 
preme court  and  of  the  circuit  and  district  courts, 
the  commissioners  of  the  circuit  courts,  and  the 
judges  and  other  magistrates  of  the  several  States 
who  are  or  may  be  authorized  by  law  to  make  arrest 
for  offenses  against  the  United  States,  shall  have 
the  like  authority  to  hold  to  security  of  the  peace, 
and  for  good  behavior  in  cases  arising  under  the 
Constitution  and  laws  of  the  United  States,  as  may 
be  lawfully  exercised  by  any  judge  or  justice  of 
the  peace  of  the  respective  States  in  cases  cogniza- 
ble before  them.    (Kev.  Stats,  sec.  737.) 

§  249  (728).  Power  to  enforce  awards  of  for- 
eign consuls,  etc.,  in  certain  cases. — The  district 
and  circuit  courts,  and  the  commissioners  of  the 
circuit  courts,  shall  have  power  to  carry  into  effect, 


§  249  COMMON   TO   MOBE   THAN   ONE   COUBT.  844 

according  to  the  true  intent  and  meaning  thereof, 
the  award  or  arbitration  or  decree  of  any  consul, 
vice-consul,  or  commercial  agent  of  any  foreign  na- 
tion, made  or  rendered  by  virtue  of  authority  con- 
ferred on  him  as  such  consul,  vice-counsel  or  com- 
mercial agent,  to  sit  as  judge  or  arbitrator  in  such 
dilferences  as  may  arise  between  the  captains  and 
crews  of  the  vessels  belonging  to  the  nation  whose 
interests  are  committed  to  his  charge;  application 
for  the  exercise  of  such  power  being  first  made  to 
such  court  or  commissioner  by  petition  of  such 
consul,  vice-counsel,  or  commercial  agent.  And 
said  courts  and  commissionei^s  may  issue  all 
proper  remedial  process,  mesne  and  final,  to  carry 
into  full  effect  such  award,  arbitration,  or  de- 
cree, and  to  enforce  obedience  thereto  by  imprison- 
ment in  the  jail  or  other  place  of  confinement  in 
the  district  in  which  the  United  States  may  law- 
fully imprison  any  person  arrested  under  the  au- 
thority of  the  United  States,  until  such  award,  ar- 
bitration, or  decree  is  complied  with,  or  the  parties 
are  otherwise  discharged  therefrom,  by  the  consent 
in  writing  of  such  consul,  vice-consul,  or  commer- 
cial agent,  or  his  successor  in  office,  or  by  the  au- 
thority of  the  foreign  government  appointing  such 
consul,  vice-consul,  or  commercial  agent;  provided, 
however,  that  the  expenses  of  the  said  imprison- 
ment and  maintenance  of  the  prisoners,  and  the 
cost  of  the  proceedings,  shall  be  borne  by  such 
foreign  government,  or  by  its  consul,  vice-consul, 
or  commercial  agent  requiring  such  imprisonment. 
The  marshals  of  the  United  States  shall  serve  all 


845  COMMON   TO   MOKE   THAN   ONE   COURT.  §§  250-251 

such  process,  and  do  all  other  acts  necessary  and 
proper  to  carry  into  eli'ect  the  premises  under  the 
authority  of  the  said  courts  and  commissioners. 
(Kev.  Stats,  sec.  728.) 

§  250.  Proceedings  to  enjoin  comptroller  of  the 
currency. — All  proceedings  by  any  national  bank- 
ing association  to  enjoin  the  comptroller  of  the  cur- 
rency under  the  provisions  of  any  law  relative  to 
national,  banking  associations  shall  be  had  in  the 
district  where  such  association  is  located.  (Kev. 
Stats,  sec,  736.) 

§  251.  Suits,  in  what  district  brought. — ^Gen- 
erally, no  person  shall  be  arrested  in  one  district 
for  trial  in  another,  in  any  civil  action  before  a 
circuit  or  district  court.  And  no  civil  suit  shall 
be  brought  before  either  of  said  courts  against  any 
person  by  any  original  process  or  proceeding  in  any 
other  district  than  that  whereof  he  is  an  inhab- 
itant; but  where  the  jurisdiction  is  founded  only 
on  the  fact  that  the  action  is  between  citizens  of 
different  States,  suit  shall  be  brought  only  in  the 
district  of  the  residence  of  either  the  plaintiff  or 
defendant.     (35  U.  S.  Stats.  434.) 

See  ante,  sections  26  and  87  and  notes. 

Application  of  statute. — This  section  does  not  ap- 
ply to  Territorial  courts.  (Salisbury  v.  Sands,  2 
Dill.  270;  Fed.  Cas.  No.  12251.)  Its  provisions  ap- 
ply to  process  in  equity  as  well  as  at  law  (Winter  v. 
Ludlow,  3  Phila.  464;  Fed.  Cas.  No.  17891);  as  on 
a  bill  filed  to  set  aside  a  foreclosure  sale.     (Pacific 


§  251  COMMON    TO    MOKE    THAN   ONE   COURT.  846 

R.  R.  V.  Missouri  Pac.  Ry.  Co.  1  McCrary,  &47;  3 
Fed.  Rep.  772.)  It  applies  exclusively  to  original 
process.  (Picquet  t.  Swan,  5  Mason,  35;  Fed.  Cas. 
No.  11134.)  The  statute  of  Indiana  of  May  29,  1879, 
relating  to  procedure  in  actions  against  foreign  cor- 
porations, their  ofticei*s  or  agents,  does  not  apply  to 
causes  arising  outside  the  State.  (Grover  v.  Amer. 
Express  Co.,  11  Fed.  Rep.  386.)  This  section  applies 
to  suits  for  relief  against  interfering  patents.  (Lig- 
gett etc.'  Co.  V.  Miller,  1  Fed.  Rep.  203.)  It  inhib- 
its the  suing  of  any  person  in  any  other  district 
than  the  district  in  which  he  resides.  (Dovejoy  v. 
Hartford  Fire  Ins.  Co.,  11  Fed.  Rep.  64.)  The  pro- 
visions of  this  section  are  applicable  to  patent  suits. 
(Chaffe  V.  Hay  ward,  20  How.  208;  Allen  v.  Blunt, 
1  Blatchf.  480;  Fed.  Cas.  No.  215;  Day  v.  Newark 
Manuf.  Co.,  1  Blatchf.  628;  Fed.  Cas.  No.  3685.)  A 
bill  to  obtain  relief  against  a  judgment  is  deemed 
an  auxiliary  suit,  and  the  subpoena  may  be  seiTed 
in  another  district  (Logan  v.  Patrick,  5  Cranch,  288; 
Dunlap  T.  Stetson,  4  Mason,  349;  Fed.  Cas.  No.  4164); 
and  if  plaintiff  is  nonresident,  it  may  be  sei'ved  on 
plaintiff's  attorney.  (Dunn  v.  Clarke.  8  Peters,  1; 
Seegee  v.  Thomas.  3  Blatchf.  1] ;  Fed.  Cas.  No. 
12633;  Hitner  v.  Suekley,  2  Wash.  C.  C.  465;  Fed. 
Cas.  No.  6543;  Read  v.  Consequa.  4  Wash.  C.  C.  174; 
Fed.  Cas.  No.  11606;  Eckert  v.  Bauert,  4  Wash.  C.  0. 
370;  Fed.  Cas.  No.  4266;  Ward  v.  Sealiry.  4  Wash. 
C.  C.  426;  Fed.  Cas.  No.  17161.  See  additional  notes, 
p.  ante  §§  26,  87. 

Territorial  limit  of  jurisdiction. — A  court  created 
within  and  for  a  particular  territory  is  bounded  in 
the  exercise  of  its  power  by  the  limits  of  such  ter- 
ritory. (IMcquet  v.  Swan,  5  Mason,  35;  Fed.  Cas. 
No.  11134;  Ex  parte  Graham,  3  Wash.  C.  C  456; 
Fed.  Cas.  No.  5657.)     Whatever  may  be  the  extent 


847       COMMON  TO  MORE  THAN  ONE  COURT.    §  251 

of  the  jurisdiction  orer  the  subject-matter  in  a  suit 
in  respect  to  jurisdiction  over  persons  and  prop- 
erty, it  can  only  be  exercised  within  the  limits  of 
the  judicial  district.  (Toland  v.  Sprague,  12  Peters, 
300;  Picquet  v.  Swan,  5  Mason,  35;  Fed.  C'as.  No. 
11134.)  Where  a  citizen  of  New  Hampshire  and 
a  citizen  of  Georgia  sued  a  citizen  of  Massachu- 
setts in  New  York,  where  he  was  arrested,  the  court 
had  no  jurisdiction.  (Moffat  v.  Soley,  2  Paine,  103; 
Fed.  Cas.  No.  96S8.)  Where  there  are  two  districts 
in  a  State,  a  citizen  of  such  State  is  liable  to  suit 
in  either  district  if  served  with  process.  (McMicli- 
en  V.  Webb,  11  Peters,  25;  Vore  v.  Fowler,  2  Bond, 
294;  Fed.  Cas.  No.  17003;  Locomotive  Co.  v.  Erie 
R.  Co.,  10  Blatchf.  292;  Fed.  Cas.   No.  8452.) 

Jurisdiction,  how  acquired. — A  Federal  court  ac- 
quires jurisdiction  over  parties  only  by  a  service  of 
process  or  by  their  voluntary  appearance  (Herndon 
v.  Ridgway,  17  How.  424),  and  only  by  seiTice  of 
process  within  the  district  (Allen  v.  Blount.  1 
Blatchf.  480;  Fed.  Cas.  No.  215;  Union  Sugar  Refi. 
V.  Matthiesseu,  2  Cliff.  304;  Fed.  Cas.  No.  14.397), 
and  not  then  if  he  is  but  temporarily  within  the 
district,  (Smith  v.  Tuttle,  5  Biss.  159;  Fed.  Cas.  No. 
13120.)  A  person  who  comes  within  the  district 
merely  for  the  purpose  of  attending  a  trial  in  a 
State  court  cannot  be  sei-ved  with  process  issuing 
oiit  of  a  United  States  court  (.luneau  Bank  v.  Mc- 
Spedan,  5  Biss.  64;  Fed.  Cas.  No.  7582);  and  if  served 
with  summons  while  attending  the  trial  of  a  cause 
in  the  circuit  court  as  a  party,  the  service  will  be 
set  aside.)  Parker  v.  Hotchkiss,  1  Wall.  .Tr.  269; 
Fed.  Cas.  No.  10739;  contra.  Blight  v.  Fisher,  Pet- 
ei-s.  C.  C.  41;  Fed.  Cas.  No.  1542.)  Where  defend- 
ant, not  an  inhabitant  of  the  distiMct,  is  inveigled  or 
enticed  into  the  district  by  false,  representations  or 


§  251  COMMON    TO    MORE    THAN    ONE   COURT.  848 

deceptive  contrivances,  service  of  pi'ocess  on  liim 
within  the  district  is  illegal.  (Steiger  v.  Bonn,  4 
Fed.  Rep.  17;  Union  Sugar  Kefi.  v.  Matthiessen,  2 
Cliff.  304:  Fed.  Cas.  No.  143JJ7.)  If  a  nonresident 
comes  into  the  district  for  the  purpose  of  pleading 
to  an  indictment  and  giving  bail,  he  cannot  be  sued 
before  he  has  a  reasonable  time  to  depart  (U.  S. 
V.  Bridgman,  9  Biss.  221;  Fed.  Cas.  No.  14&45.)  If 
defendant  is  a  nonresident  of  the  district,  the  record 
must  show  with  certainty  that  pi'ocess  was  served 
upon  him  within  the  district.  (Allen  r.  Blunt,  1 
Blatchf.  480;  Fed.  Cas.  No.  215;  Tore  v.  Fowler,  2 
Bond,  294;  Fed.  Cas.  No.  17003;  McCloskey  v.  Webb, 
2  Bond,  16;  Fed.  Cas.  No.  8702;  Thayer  v.  Wales,  5 
Fish.  448;  Fed.  Cas.  No.  13872.) 

Waiver  of  irregularities. — A  Federal  court  has  no 
authority  to  issue  process  to  another  district.  (Hern- 
don  V.  Ridgway,  17  How.  424.)  So  the  process  of 
a  circuit  court  cannot  be  served  without  the  dis- 
trict in  which  it  is  established  except  by  special 
authority  of  law.  (Toland  v.  Sprague,  12  Peters, 
300;  Ex  parte  Graham,  3  Wash.  C.  C.  456;  Fed.  Cas. 
No.  5657;  Wilson  v.  Graham,  4  Wash.  C.  C.  53;  Fed. 
Cas.  No.  17804.)  In  proceedings  for  relief  against 
an  interfering  patent  under  section  four  thousand 
nine  hundred  and  eighteen.  Revised  Statutes,  no 
provision  is  made  for  service  of  notice  on  parties 
outside  of  the  district.  (Liggett  v.  Miller,  1  Mc- 
Crary,  31;  1  Fed.  Rep.  203.)  No  judgment  can  be 
rendered  against  a  defendant  who  has  not  been 
served  with  process  in  the  manner  pointe<l  out,  un- 
less the  defendant  waives  the  necessary  process  by 
entering  his  appearance,  (Levy  v.  Fitzpatrick,  15 
Peters,  167.)  A  party  defendant  may  plead  service 
of  process  on  him  out  of  the  district  by  plea  in 
abatement  of  the  suit.     (Van  Antwerp  v.   Hulburd, 


849  COMMON    TO    MORE   THAN   ONE   COURT.  §  251 

7  Blatchf.  426;  Fed.  Cas.  No.  16826.)  Where  a  de- 
fendant appears  witliout  taking  exceptions,  it  is  an 
admission  of  the  regularity  of  the  service  (Gracie 
V.  Palmer,  8  Wheat.  699);  but  if  he  appears  and 
answers  the  bill,  he  cannot  on  the  hearing  object 
that  the  bill  contained  a  prayer  for  process,  or  that 
he  was  not  served.  (Seegee  v.  Thomas,  3  Blatchf. 
11;  Fed.  Cas.  No.  12633.)  And  if  he  appeal'^  and 
pleads  on  the  merits,  it  is  a  waiver  of  irregularity. 
(Toland  v.  Sprague,  12  Peters,  300;  Pollard  r. 
Dwight,  4  Cranch,  421;  Irvine  v.  Lowry,  14  Peters, 
293);  see  ante,  section  26  and  note. 

Corporations.— A  corporation  can  have  no  exist- 
ence beyond  the  limits  of  the  State  in  which  it  is 
created;  hence,  service  of  process  upon  its  officers 
in  another  State  will  not  confer  jurisdiction  upon  a 
circuit  court  in  that  State  over  the  corporation. 
(Northern  Ind.  R.  Co.  v.  Michigan  Cent.  R.  Co.,  15 
How.  233;  Day  v.  Newmark  Manuf.  Co.,  1  Blatchf. 
628;  Fed.  Cas.  No.  3685;  Decker  v.  New  York  B.  & 
P.  Co.,  11  Blatchf.  76;  Fed.  Cas.  No.  3727;  Myers  v. 
Dorr,  13  Blatchf.  22;  Fed.  Cas.  No.  9988.)  As  a 
corporation  cannot  be  made  a  party  to  a  civil  suit 
by  original  process  in  any  other  district  than  the 
State  wherein  it  was  created  (Myers  v.  Dorr,  13 
Blatchf.  22;  Fed.  Cas.  No.  4988),  so  a  national  bank 
cannot  be  sued  out  of  the  district  in  which  it  is 
located  (Main  v.  Second  Nat.  Bank,  6  Biss.  26;  Fed. 
Cas.  No.  8976);  but  a  trading  corporation  may  be 
sued  in  any  district  in  which  it  conducts  its  busi- 
ness (Hayden  v.  Androscoggin  Mills,  1  Fed.  Rep, 
93),  and  a  foreign  corporation  may  be  sued  in  a  dis- 
trict other  than  that  of  which  it  is  a  resident  if  it 
has  a  duly  authorized  resident  agent,  qualified  to 
acknowledge  service  of  process  (Runkle  v.  Lamar 
Ins.  Co.,  2  Fed.  Rep.  9;  Moch  v.  V.  F.  &  M.  Ins.  Co., 


§  251  COMMON   TO    MORE    THAN   ONE   COURT.  850 

10  Fed.  Kep.  696);  or  if  it  consents  that  process  may 
be  served  on  its  agent  in  sucli  State,  jurisdiction 
attaches.  (Ex  parte  Schollenberger,  96  U.  h.  369; 
Knott  V.  Southern  L.  Ins.  Co.,  2  Woods,  479;  Fed. 
Cas.  No.  7894;  Ehrman  v.  Teutonia  Ins.  Co.,  1  Fed. 
Kep.  471;  Riinkle  v.  Lamar  Ins.  Co.,  2  Fed.  Rep.  9; 
Fonda  v.  British  Am.  Ins.  Co.,  10  Chic.  L.  N.  309; 
Fed.  Cas.  No.  4904;  Albright  v.  Empire  Ti*ans.  Co., 
18  Alb.  L.  J.  313;  contra,  Pomeroy  r.  New  York  & 
N.  ri.  R.  Co.,  4  Blatchf.  120;  Fed.  Cas.  No.  11261; 
Southern  &  A.  T.  R.  Co.  v.  New  Orleans  M.  &  T. 
R.  Co..  2  Cent.  L.  J.  88;  Fed.  Cas.  No.  13185;  Stillwell 
V.  Empire  F.  Ins.  Co.,  4  Cent.  L.  J.  463;  Fed.  Cas. 
No.  1.3449).  A  foreign  coii)oration  doing  business 
within  the  State  is  liable  to  suit  by  service  of  pro- 
cess on  an  agent  (Albright  v.  Empire  Trans.  Co.,  18 
Alb.  L.  J.  313;  Fed.  Cas.  No.  17720;  see  Brownell  v. 
T.  &  B.  R.  Co.,  3  Fed.  Rep.  761;  Moch  v.  V.  F.  & 
M.  Ins.  Co.,  10  Fed.  Rep.  696),  although  there  is  no 
State  law  requiring  it  to  appoint  an  agent  to  accept 
service  of  process.  (Wilson  Pack.  Co.  v.  Hunter, 
8  Biss.  429;  Fed.  Cas.  No.  17852.)  See  ante,  section 
26  and  note. 

A  personal  privilege,  and  may  be  ■waived. — This 
section  is  not  a  denial  of  jurisdiction,  but  the 
grant  of  a  privilege  to  defendant  not  to  be  sued 
out  of  the  State  where  he  resides,  unless  served 
with  process  in  the  State  where  suit  is  brought 
(Harrison  v.  Rowan,  Peters,  C.  C.  489;  Fed.  Cas. 
No.  6140);  and  imder  its  provisions  the  privilege 
granted  to  him  may  be  waived  (Flanders  v.  Aetna 
Ins.  Co.,  3  Ma.son,  158;  Fed.  Cas.  No.  4852;  see 
T^vejoy  v.  Hartford  F.  Ins.  Co.,  11  Fed.  Rep.  63), 
as  by  voluntary  appearance  (Harrison  v.  Rowan, 
Peters.  C.  C.  489;  Fed.  Cas.  No.  6140;  Hale  v.  Contin. 
Ins.    Co.,   12   Fed.    Rep.   359);   and     his   appearance 


851  COMMON   TO    MORE    THAN   ONE   COURT.  §251 

without  process  is  a  waiver  of  tlie  privilege  to  ob- 
ject to  the  nonservice  of  process.  (Gracie  v.  Pal- 
mer, 8  AYheat.  699;  Segree  v.  Thomas,  3  Blatchf.  11; 
Fed.  Cas.  No.  12633;  Kelsey  v.  Pennsylvania  R.  Co., 
14  Blatchf.  89;  Fed.  Oas.  No.  7679;  McClosliey  v. 
Cobb,  2  Bond,  16;  Fed.  Cas.  No.  8702;  Flanders  v. 
Aetna  Ins.  Co.,  3  Mason,  158;  Fed.  Cas.  No.  4852; 
Harrison  v.  Rowan,  Petei's,  G.  C.  489;  Fed.  Cas.  No. 
6140;  Clarke  v.  Navigation  Co.,  1  Story,  531;  Fed. 
Cas.  No.  2859.)  So  appearing  and  moving  to  dis- 
miss the  bill  for  want  of  equity  (Jones  v.  Andrews, 
10  Wall.  327),  or  an  appearance  unaccompanied  by  a 
plea  claiming  the  privilege,  is  a  waiver  of  it.  (Har- 
rison V.  Rowan,  Peters,  C.  O.  489;  Fed.  Cas.  No. 
6140.)  For  an  appearance  to  confer  jurisdiction,  the 
party  must  be  a  party  to  the  record.  (Kentucky  S. 
M.  Co.  V.  Day,  2  Sawy.  468;  Fed.  Cas.  No.  7719.)  If 
a  part  J"  is  a  nonresident  he  may  appear  in  the  suit 
and  plead  his  personal  privilege  (Teese  v.  Phelps,  1 
McAll.  17;  Fed.  Cas.  No.  13818),  and  such  an  ap- 
pearance is  not  a  waiver  (Harrison  v.  Rowan,  Peters 
C.  C.  489;  Fed.  Cas.  No.  6140);  but  it  is  not. a  waiver 
to  appear  and  plead  to  the  jurisdiction  by  an  at- 
torney. (Commercial  Bank  v.  Slocomb,  14  Peters, 
60;  Thayer  v.  Wales,  5  Fish  Pat.  Cas.  448;  Fed. 
Cas.  No.  13872;  Decker  v.  New  York  B.  &  P. 
Co.,  11  Blatchf.  76;  Fed.  Cas.  No.  3727.)  Vfhere 
a  bill  was  filed  in  the  southern  district  of  Mississippi 
against  four  defendants,  two  of  whom  appeared  for 
the  purpose  of  moving  to  dismiss  the  bill,  and  the 
other  two  declined  to  appear  and  process  was  not 
served  on  them,  the  court  had  no  alternative  but  to 
dismiss  the  bill,  they  being  necessary  parties. 
(Herndon  v.  Ridgway,  17  How.  424.)  See  ante,  sec- 
tions 26  and  87  and  notes. 

Process   by   attachment. — An   attachment    against 
the  property-   of  a  nonresident   cannot  be   sued   out, 


§  251  COMMON   TO   MORE   THAN   ONE   COURT.  852 

unless  the  defendant  is  first  personally  served  with 
process.  (Ex  parte  Des  Moines  R.  R.  Co.,  2  Morr. 
Trans.  303.)  The  circuit  court  has  no  jurisdiction 
in  attachment  suits  against  a  nonresident  without 
the  district.  (Hollingsworth  v.  Adams,  2  Dall.  3\}Q; 
Toland  v.  Sprague,  12  Peters,  300;  Chaffee  v.  Hay- 
ward,  20  How.  208;  Day  v.  Newark  Manuf.  Co., 
1  Blatchf.  628;  Fed.  Cas.  No.  3GS5;  Sadler  v.  Hud- 
son, 2  Curt,  6;  Fe^.  Cas.  No.  12206;  Mauldin  v. 
Car] I  3  Hughes,  2i9;  Fed.  Cas.  No.  9307;  Picquet 
V.  Swan,  5  Mason,  35;  Fed.  Cas.  No.  11134;  Rich- 
mond V.  Dreyfos,  1  Sum.  131;  Fed.  Cas.  No.  11799.) 
Process  of  foreign  attachment  cannot  be  properly  is- 
sued by  the  circuit  court  in  ca.ses  where  defendant 
is  domiciled  abroad  or  not  found  within  the  distxict, 
so  that  it  can  be  served  upon  him  (Toland  v. 
Sprague,  12  Peters  300;  Anderson  v.  Shaffer,  10  Fed. 
Rep.  266),  and  this  applies  to  cori)orations.  (Myers 
V.  Dorr,  13  Blatchf.  22;  Fed.  Cas.  No.  9988.)  Pro- 
cess of  attachment  on  the  effects  of  a  person  not 
an  inhabitant  cannot  be  served  (Pollard  r.  Dwight, 

4  Cranch,  424);  but  if  seiwed  not  only  on  the  prop- 
erty but  on  the  defendant,  jurisdiction  attaches. 
(North  V.  McDonald,  1  Biss.  57;  Fed.  Cas  No.  10312.) 
An  assignee  appointed  by  a  bankrupt  court  of  an- 
other district  is  within  the  rule  although  there  is 
property  within   the  district.     (Shainwald  v.   Lewis, 

5  Fed.  Rep.  510;  S.  C,  6  Sawy.  585.)  Where  a  citi- 
5ien  of  the  United  States  is  a  resident  in  a  foreign 
country,  the  circuit  court  has  no  jurisdiction  over  a 
suit  brought  by  an  alien,  although  he  has  property 
within  the  district  which  may  be  attached.  (Picquet 
V.  Swan,  5  Mason,  35;  Fed.  Cas.  No.  11134.) 

Civil  suits. — "Civil  suit"  means  a  suit  within  the 
category  of  "all  suits  of  a  civil  nature  at  common 
law  or  in  equity,"  and  a  case  of  admiralty  jurisdic- 
tion is  not   within   the  meaning  of  this  prohibition. 


853       COMMON  TO  MORE  THAN  ONE  COURT.    §  252 

(Atkins  V.  Disintegrating  Co.,  18  Wall.  272;  Casey  v. 
Leary.  2  Ben.  .j30;  Fed.  Cas.  No.  2497;  Manchester 
V.  Hotclildss;  13  Int.  Rev.  Eec.  125;  Fed.  Cas.  No. 
9004;  but  see  Ex  parte  Graham,  3  Wash.  C.  C.  456; 
Fed.  Cas.  No.  .5657;  Wilson  v.  Fierce,  15  Law  Rep. 
1.37;  New  England  Ins.  Co.  v.  Navigation  Co.,  13 
Int.  Rev.  Rec.  94;  Fed.  Cas.  No.  10154.)  This  pro- 
vision does  not  apply  to  a  person  who  has  never 
been  an  inhabitant  of  the  United  States.  (Cushing 
r.  Laird.  4  Ben.  70;  Fed.  Cas.  No.  3508.)  A  prize 
proceeding  is  a  civil  suit,  and  if  against  the  per- 
son can  be  instituted  only  in  the  district  where  he 
is  an  inhabitant.  (Ex  parte  Graham,  3  Wash.  C. 
C.  456;  Fed.  Cas.  No.  5657.)  Attachment  will  lie 
against  in  debt  or  contract  or  tort.  (McGrath  v. 
Candalero,  Bee,  64;  Fed,  Cas.  No.  8810;  Bouyssou 
V.  Miller,  Bee,  186;  Fed.  Cas.  No.  1709.)  It  may 
be  issued  against  a  nonresident  in  an  action  on 
contract,  even  if  the  nonresident  be  a,  corporation. 
(Clarice  r.  Navigation  Co.,  1  Story,  531;  Fed.  Cas. 
No.  2859.) 

§  252  (747).  Parties  may  plead  their  own 
causes. — In  all  the  courts  of  the  United  States  the 
parties  may  plead  and  manage  their  own  causes 
}iersonally,  or  by  the  assistance  of  such  counsel  or 
attorneys-at-law  as,  by  the  rules  of  the  said  courts, 
respectively,  are  permitted  to  manage  and  conduct 
causes  therein.     (Eev.  Stats,  sec.  747.) 

Attorney.— When  an  attorney  is  selected  to  con- 
duct and  manage  the  case,  the  attorney  stands  in 
the  place  of  the  party  and  has  exclusive  control  and 
management,  and  his  client  cannot  appoint  an 
agent  to  represent  him  in  the  snit.  (Nightingale  v. 
Oieg.  Cent.  R.  R.  Co.,  2  Sawy.  .338;  Fed.  Cas.  No. 
10264.)  Tbe  presumption  is  that  an  attorney  appear- 
Fed.  Proc— 72. 


§  253  COMMON   TO    MOEE    THAN   ONE   COURT.  854 

ing  in  court  for  a  party  has  authority  to  do  so; 
and  where  the  want  of  authority  is  questioned  the 
burden  of  proof  is  on  the  party  attacliing.  Au- 
thority must  be  questioned  by  direct  attack,  and 
may  be  challenged  by  motion  to  dismiss  the  action 
to  compel  the  party  to  show  authority  to  vacate 
the  appearance;  and  in  eases  where  the  validity  of 
any  order,  judgment  or  decree  depends  upon  the  jur- 
isdiction of  the  court  over  the  person  of  the  party 
acquired  solely  by  appearance  by  attorney,  the  au- 
thority may  be  challenged  on  a  motion  to  vacate 
the  order,  judgment  or  decree  fBonnifield  v.  Thorp, 
71  Fed.  Rep.  924).  Where  a  party  appeal's  by  at- 
torney all  the  preceedings  in  court  must  be  con- 
ducted, and  all  acts  affecting  the  remedy  and  not 
the  cause  incidental  to  the  prosecution  of  the  cause, 
such  as  a  stipulation  extending  time  to  answer, 
must  be  done  by  the  attorney  (Bonnifield  v.  Thorp, 
71  Fed.  Rep.  924). 

Attorney's  fees— Lien. — The  Federal  courts  pro- 
tect attorneys  of  record  in  their  fees  (FrinU  v.  Mc- 
Comb,  60  Fed.  Rep.  486;  United  States  v.  Boyd,  79 
Fed.  Rep.  8.58;  Blair  v.  Harrison,  18  U.  S.  A  pp.  27; 
57  Fed.  Rep.  257;  Foster  r.  Danforth,  59  Fed.  Rep. 
750). 

§  253  (748).  Officers  forbidden  to  practice  as 
attorneys. — Xo  clerk,  assistant,  or  deputy  clerk,  of 
any  territorial  district,  or  circuit  court,  or  of  the 
court  of  claims,  or  the  supreme  court  of  the  United 
States,  or  marshal  or  deputy  marshal  of  the  United 
States  within  the  district  for  which  he  is  appointed, 
shall  act  as  a  solicitor,  proctor,  attorney,  or  coun- 
sel, in  any  cause  depending  in  either  of  said  courts, 
or  in  any  district  for  which  he  is  acting  as  such  offi- 
cer,    (liev.  Stats,  sec.  748.) 


855  COMMON   TO    MORE    THAN   ONE   COURT.  §§  254-255 

§  254  (749).  Penalty. — Whosoever  violates  the 
preceding  section  shall  be  stricken  from  the  roll  of 
attorneys  by  the  court,  upon  complaint,  upon 
which  the  respondent  shall  have  due  notice,  and 
be  heard  in  his  defense;  and  in  the  case  of  a  mar- 
shal or  deputy  marshal  so  acting,  he  shall  be  rec- 
ommended by  the  court  for  dismissal  from  office. 
(Eev.  Stats,  sec.  749.) 

§  255  (750).  Final  record. — In  equity  and  ad- 
miralty causes,  only  the  process,  pleadings,  and  de- 
cree, and  such  orders  and  memorandums  as  may 
be  necessary  to  show  the  jurisdiction  of  the  court 
and  regularity  of  the  proceedings,  shall  be  entered 
upon  the  final  record.  (See  sec.  698.  Eev.  Stats. 
sec.  749.) 


OFFICEES  OF  UNITED  STATES  COUETS.  856 


CHAPTER    XV. 

OFFICERS  OF  UNITED  STATES  COITRTS. 

§  256.    Restriction  on   appointment   of  officers. 

§  257.     Clerk  not  to  be  receiver  or  master. 

§  2.57  a.  Persons  not  to  be  commissioner  or  receiver. 

§  2-58.     Extra  compensation. 

§  259.     Residence  of  officers. 

§  260.    District  attorneys  and  marshals. 

§  261.    Term  and  oath  of  district  attorneys. 

§  2G1  a.  Assistant  district  attorneys— appodntment. 

§  201  b.  Clerks  for  district  attorneys. 

§  262.  Salaries  of  district  attorney  of  southern  dis- 
trict of  New  York. 

§  262  a.  SaJaries  of  district  attorneys. 

§  263.     Duties  of  district  ajttomeys. 

§  264.     Statements  of  suits. 

§  205.     Return  of  disti'ict  attorneys  to  treasury. 

§  266.  Return  of  distilct  attorneys  to  commissioner 
internal  revenue. 

§  267.     Report  by  district  attorney. 

§  268.     Marshal's   terms. 

§  260.     Deputy  marshals. 

§  269  a.  Office  deputies— Act  of  1896. 

§  269  b.  Field  deputies— Act  of  1896. 

§  270.     Marshal's   salaries. 

§  270  a-  Expenses  allowed  to  marshal. 

§  270  b.  Office  expenses  of  district  attorneys  and 
marshals. 

§  270  c.  Ex])ense  account  of  district  attorney  and 
marshal. 

§  270  d.  Penalty  for  acceiitinp:  compensation  for  ser- 
vices other  tlmii  provided  by  lavr. 


857  OFFICERS  OF  UNITED  STATES  COURTS.  §  256 

§  271.     Oath   of  marshals. 

§  271  a.  Before  whom  oath  is  taken. 

§  272.     Marshal's  bond. 

§  273.     Returns  to  solicitor  of  treasury. 

§  274.     Returns,   postoffice   department. 

§  275.     Vacancies   in   office  of    district    attorney    or 

marshal. 
§  275  a.  Vacancies,  how  filled. 
§  276.     Suits  on  marshal's  bond — costs. 
§  277.     Marshal's  bond  to  remain  after  judgment. 
l§  278.     Limitation  of  bonds. 
§  279.     Duties  of  marshals. 
§  280.     Powers  of  marshals. 
§  281.     In  case  of  death  of  marshal. 
§  282.     May  execute  process  in  their  hands  when  re- 

moTcd. 
§  283.     Oath  of  clerks. 
§  284.     Clerk's  bond. 
§  285.     Clerks  and  marshals,  when  to  give  Increased 

bond. 
§  286.     Bond  of  deputy   clerks. 
§  287.     List  of  judgments. 
§  288.     Account  of  payments. 
§  289.     Oaths,  who  may  administer. 
§  290.     Powers  and  duties  of  officers. 

§  256.  Relatives  of  judge  not  to  be  appointed 
officers. — That  no  person  related  to  any  justice  or 
judge  of  any  court  of  the  United  States  by  affinity 
or  consanguinity,  within  the  degree  of  first  cousin, 
shall  hereafter  be  appointed  by  such  court  or  judge 
to,  or  employed  by  such  court  or  judge  in,  any 
office  or  duty  in  any  court  of  which  such  justice  or 
judge  may  be  a  member.  (Approved  March  3, 
1887;  August  13,  1888,  sec.  7;  3-i  U.  S.  Stats.  552; 
25  U.  S.  Stats.  433.) 


§  257  OFFICERS  OF  UNITED  STATES  COURTS.  858 

Person  related  to  judge  not  to  be  officer. — The 
provision  that  no  Federal  judge  shall  "hereafter" 
appoint  to  any  ofBce  or  duty  in  the  courts  a  per- 
son related  to  him  within  the  degi-ee  of  first  cousin, 
does  not  invalidate  such  an  appointment  previously 
made  (Northw^estern  Mutual  Life  Ins.  Co.  v.  Sea- 
man, 80  Fed.  Rep.  357).  Quaere,  whether  two  men 
who  man-y  sisters  are  so  related  by  affinity  or  con- 
sanguinity that  one  of  them,  if  he  be  a  Federal 
judge,  may  not  appoint  the  other  a  special  master 
to  hear  and  report  on  an  isolated  case  (Farmer's 
Loan  &  Trust  Co.  r.  Iowa  Water  Co.,  80  Fed.  Rep. 
468).  A  final  decree  entered  on  the  report  of  a 
special  master,  appointed  in  violation  of  the  above 
section,  is  not  thereby  rendered  absolutely  void  so 
that  the  court  wiU  have  power  to  set  it  aside  on 
motion  at  a  subsequent  term  (Farmer's  Loan  &  T. 
Co.  V.  Iowa  Water  Co.,  80  Fed.  Rep.  467). 

§  257.  Clerk  not  to  be  receiver  or  master. — 
No  clerk  of  the  district  or  circuit  courts  of  the 
United  States,  or  their  deputies,  shall  be  appointed 
a  receiver  or  a  master  in  any  case  except  where  the 
judge  of  said  court  shall  determine  that  special 
reasons  exist  therefor,  to  be  assigned  in  the  order 
of  appointment.  (20  U.  S.  Stats.  415;  1  Sup.  Eev. 
Stats.  464.) 

Clerk  as  master. — An  order  appointing  a  clerk  of  a 
Federal  court  as  master  in  chancery  without  giv- 
ing any  special  reason  therefor  as  required  by  the 
above  section  is  sufficient,  however  irregular,  to 
clothe  him  with  the  insignia  of  the  office  so  that  his 
acts  will  be  those  of  a  de  facto  incumbent  and  not 
subject  to  question  in  a  collateral  proceeding  (North- 
western Mut  Life  Ins.  Co.  v.  Seaman,  80  Fed.  Rep. 
357). 


859         OFFICERS  OF  UNITED  STATES  COURTS.   §§  257a-258 

§  257  a.  Persons  not  to  be  commissioner  or  re- 
ceiver.— That  no  marshal  or  deputy  marshal,  at- 
torney or  assistant  attorney  of  any  district,  jury 
commissioner,  clerk  of  marshal,  no  bailiff,  crier, 
juror,  janitor  of  any  government  building,  nor  any 
civil  or  military  employee  of  the  government,  ex- 
cept as  in  this  act  provided,  and  no  clerk  or  em- 
ployee of  any  United  States  justice  or  judge  shall 
have,  hold  or  exercise  the  duties  of  United  States 
commissioner.  And  it  shall  not  be  lawful  to  ap- 
point any  of  the  officers  named  in  this  section  re- 
ceiver  or  receivers  in  any  case  or  cases  now  pending 
or  that  may  be  hereafter  brought  in  the  courts  of 
the  United  States.    (29  U.  S.  Stats.  184.) 

§  258.  Extra  compensation. — That  no  civil  offi- 
cer of  the  government  shall  hereafter  receive  any 
compensation  or  perquisites,  directly  or  indirectly, 
from  the  treasury  or  property  of  the  United  States 
beyond  his  salary  or  compensation  allowed  by  law; 
provided, thai  this  shpll  not  be  construed  to  prevent 
the  employment  and  payment  by  the  department  of 
justice  of  district  attorneys  as  now  allowed  by  law 
for  the  performances  of  services  not  covered  by 
their  salaries  or  fees.  (Approved  June  20,  1874. 
See  Eev.  Stats,  sees.  619,  767,  776,  843.) 

Note. — By  an  act  which  took  effect  on  July  1,  1896, 
29  U.  S.  Stats.  179.  all  fees  and  emoluments  author- 
ized by  law  to  be  paid  to  district  attorneys  and 
marshals  were  directed  to  be  charged  as  theretofore, 
and  collected  and  paid  to  the  clerk  of  the  court,  hav- 
ing jurisdiction,  and  by  him  covered  into  the  treas- 
ury of  the  United   States.     In  lieu  of   the  fees   al- 


§g  259-260  OFFICERS  of  united  states  coukts.        860 

lowed  to   the   marshals   and   district  attorneys   they 
now  receive  salaries  as  provided  by  the  act. 

§  259.  Residence  of  oiRcers. — That  every  clerk 
of  the  circuit  or  district  court  of  tlie  United  States, 
United  States  marslial,  or  United  States  district  at- 
torn e5^,shall  reside  permanently  in  the  district  where 
his  official  duties  are  to  be  performed,  and  shall 
give  his  personal  attention  thereto;  and  in  case  any 
such  officer  shall  remove  from  his  district,  or  shall 
fail  to  give  personal  attention  to  the  duties  of  his 
office,  except  in  case  of  sickness,  such  offce  shall  he 
deemed  vacant;  provided,  that  in  the  southern  dis- 
trict of  New  York  said  officers  may  reside  within 
twenty  miles  of  their  districts.  (See  sees.  619, 
767,  776;  18  U.  S.  Stats.  109;  1  Sup.  Eev.  Stats. 
47.) 

By  an  act  which  went  into  effect  July  1,  1896, 
the  attorney  general  is  authorized  to  fix  and  de- 
clare the  place  of  residence  of  the  district  attorney 
and  of  each  of  his  assistants,  provided,  the  said  as- 
sistants must  be  residents  of  the  district  for  which 
they  are  appointed.  (29  U.  S.  Stats.  181.)  The 
marshal's  official  residence  shall  be  deemed  to  be  at 
one  of  the  places  of  holding  court  in  the  district, 
and  the  attorney  general  shall  be  authorized  to  fix 
and  declare  the  place  of  such  official  residence. 
(29  U.  S.  Stats.  183.) 

All  acts  and  portions  of  acts  inconsistent  with 
this  act  are  hereby  repealed.     (29  U.  S.  Stats.  186.) 

§  260.  District  attorneys. — There  shall  be  ap- 
pointed in  each  district  a  person  learned  in  the  law. 


S61         OiTICEES  OF  UNITED  STATES  COURTS.   §§  26 1-26 la 

to  act  as  attorney  for  the  United  States  in  such  dis- 
trict.    (Eev.  Stats,  sees.  767,  776.) 

§  261.     Term  and  oath  of  district  attorney. — 

District  attorneys  shall  be  appointed  for  a  term  of 
four  years,  and  their  commissions  shall  cease  and 
expire  at  the  expiration  of  four  years  from  their 
respective  dates.  And  every  district  attorney,  be- 
fore entering  upon  his  office,  shall  be  sworn  to  a 
faithful  execution  thereof.  (Eev.  Stats,  sec.  768.) 
The  attorneys  and  marshals  of  the  United  States, 
including  the  District  of  Columbia  and  the  territo- 
ries, shall  continue  to  discharge  the  duties  of  their 
respective  offices,  unless  sooner  removed  by  the 
President,  until  their  successors  shall  be  appointed 
and  qualify  m  their  stead.  But  they  shall  be  ap- 
pointed and  commissioned  for  the  term  of  four 
years  as  now  provided  by  law.  (30  U.  S.  Stats.  487.) 

Term.— Tlie  president  has  power  to  remove  a  dis- 
trict attorney  within  the  four  years  for  which  he  was 
appointed,  and  to  appoint  his  successor.  (Parsons  v. 
United  States,  167  U.  S.  324.) 

§  261  a.  Assistant  district  attorneys — Ap- 
pointment— Compensation. — That  whenever,  in 
the  opinion  of  the  district  judge  of  any  district  or 
the  chief  justice  of  any  territory  and  the  district 
attorney,  evidenced  by  writing,  the  public  interest 
requires  it,  one  or  more  assistant  district  attorneys 
may  be  appointed,  by  the  attorney  general;  but 
such  opinion  shall  state  to  the  attorney  general  the 
facts  as  distinguished  from  conclusions,  showing 
the  necessity  therefor.     Such  assistant  district  at- 


§  261b  OFFICERS  OF  UNITED  STATES  COURTS.  862 

torneys  shall  be  paid  such  salary  as  the  attorney 
general  maj'  from  time  to  time  determine  as  to 
each,  which  shall  in  no  case  exceed  two  thousand 
five  hundred  dollars  per  annum;  provided,  that  the 
necessary  expenses  for  lodging  and  subsistence  act- 
ually paid,  not  exceeding  four  dollars  per  day  and 
actual  and  necessary  traveling  expenses  of  the  dis- 
trict attorney  and  his  assistants,  while  absent  from 
their  respective  official  residences  and  necessarily 
employed  in  going  to,  returning  from  and  attend- 
ing before  any  United  States  court  commissioner 
or  other  committing  magistrate,  and  while  other- 
wise necessarily  absent  from  their  respective  offi- 
cial residences  on  official  business  shall  be  allowed 
and  paid  in  the  manner  hereinafter  provided.  (29 
U.  S.  Sta.ts.  181,  sec.  8.) 

As  to  compensation  without  certificate  of  the  attor- 
ney general,  see  United  States  v.  Crossthwaite,  xUS 
U.  S.  375.) 

§  261  b.  District  attorneys,  when  may  employ 
clerks. — That  the  district  attorney  of  any  judicial 
district,  when  the  facts  showing  the  necessity 
therefor  are  certified  by  the  district  judge  to  the 
attorney  general,  may  with  the  approval  of  the  at- 
torney general,  and  no  longer  than  such  approval 
lasts,  employ  necessary  clerical  assistance  at  such 
salary  or  salaries  as  shall  be  from  time  to  time  fixed 
by  the  attorney  general.  (29  U.  S.  Stats.  183,  sec. 
15.) 

Note. — A  lawyer  appointed  by  a  district  attorney, 
ostensibly  as  a  clerk,  but  to  assist  him  in  the  duties 
of  his  office,  pursuant  to  a  letter  from  the  attorney- 


863  OFFICERS  OF  UNITED  STATES  COURTS.  §  263 

general  authorizing  such  appointment  on  condition 
that  the  appointee  should  look  solely  to  the  district 
attorney  for  his  compensation,  which  was  to  be  paid 
out  of  the  emoluments  of  the  office,  is  not  an  em- 
ployee of  the  United  States.  (United  States  v.  Mc- 
Donald, 44  U.  S.  App.  461;  72  Fed.  Rep.  898.) 

§  262.  Salaries  of  district  attorneys. — That 
the  United  States  district  attorney  for  each  of 
the  following  judicial  districts  of  the  United  States 
shall  be  paid  in  lieu  of  the  salaries,  fees,  per  eent- 
unis,  and  other  compensations  now  allowed  by  law 
an  annual  salary  as  follows:  For  the  northern  and 
middle  districts  of  the  State  of  Alabama,  each 
four  thousand  dollars;  for  the  southern  district  of 
the  State  of  Alabama,  three  thousand  dollars;  for 
the  Territory  of  Arizona,  four  thousand  dollars; 
for  the  eastern  district  of  Arkansas,  four  thousand 
dollars;  for  the  western  district  of  Arkansas,  five 
thousand  dollars;  for  the  northern  district  of  Cali- 
fornia, four  thousand  five  hundred  dollars;  for  the 
southern  district  of  California,  three  thousand  five 
hundred  dollars;  for  the  district  of  Colorado,  four 
thousand  dollars;  for  the  district  of  Connecticut, 
two  thousand  five  hundred  dollars;  for  the  district 
of  Delaware,  two  thousand  dollars;  for  the  north- 
ern district  of  Florida,  three  thousand  five  hundred 
dollars;  for  the  southern  district  of  Florida,  three 
thousand  five  hundred  dollars;  for  the  northern 
district  of  Georgia,  five  thousand  dollars;  for  the 
southern  district  of  Georgia,  three  thousand  five 
hundred  dollars;  for  the  district  of  Idaho,  three 
thousand  dollars;  for  the  northern  district  of  Illi- 
nois, five  thousand  dollars;  for  the  southern  district 


§  262  OFFICERS  OF  UNITED  STATES  COURTS.  864 

of  Illinois,  five  thousand  dollars;  for  the  district  of 
Indiana,  five  thousand  dollars;  for  the  northern 
and  southern  districts  of  Iowa,  each  four  thousand 
five  hundred  dollars;  for  the  district  of  Kansas, 
four  thousand  five  hundred  dollars;  for  the  district 
of  Kentucky,  five  tliousand  dollars;  for  the  eastern 
district  of  Louisiana,  three  thousand  five  hundred 
dollars;  for  the  western  district  of  Louisiana,  two 
thousand  five  hundred  dollars;  for  the  district  of 
Maine,  three  thousand  dollars;  for  the  district  of 
Maryland,  four  thousand  dollars;  for  the  district  of 
Massachusetts,  five  thousand  dollars;  for  the  east- 
ern district  of  Michigan,  four  thousand  dollars; 
for  the  western  district  of  Michigan,  three  thou- 
sand five  hundred  dollars;  for  the  district  of 
Minnesota,  four  thousand  dollars;  for  the  north- 
ern and  southern  districts  of  Mississippi,  each 
three  thousand  -five  hundred  dollars;  for  the  east- 
ern district  of  Missouri,  four  thousand  five  hundred 
dollars;  for  the  western  district  of  Missouri,  four 
thousand  five  hundred  dollars;  for  the  district  of 
]!iIontana,  four  thousand  dollars;  for  the  district  of 
Nebraska,  four  thousand  dollars;  for  the  district  of 
Nevada,  three  thousand  dollars;  for  the  district  of 
New  Hampshire,  two  thousand  dollars;  for  the  dis- 
trict of  New  Jersey,  tliree  thousand  dollars;  for  the 
district  of  New  Mexico,  four  thousand  dollars;  for 
the  northern  district  of  New  York,  four  thousand 
five  hundred  dollars;  for  the  eastern  district  of 
New  York,  four  thousand  five  hundred  dollars;  for 
the  eastern  district  of  North  Carolina,  four  thou- 
sand dollars;  for  the  western  district  of  North  Car- 


865  OFFICEKS  OF  UNITED  STATES  COUBTS.  §  263 

olina,  four  thousand  five  hundred  dollars;  for  the 
district  of  North  Dakota,  four  thousand  dollars; 
for  the  northern  and  southern  districts  of  Ohio, 
each  four  thousand  five  hundred  dollars;  for  the 
district  of  Oklahoma,  five  thousand  dollars;  for  the 
district  of  Oregon,  four  thousand  five  hundred  dol- 
lars; for  the  eastern  district  of  Pennsylvania,  four 
thousand  five  hundred  dollars;  for  the  western  dis- 
trict of  Pennsylvania,  four  thousand  five  hundred 
dollars;  for  the  district  of  Khode  Island,  two 
thousand  five  hundred  dollars;  for  the  eastern 
and  western  districts  of  the  district  of  South 
Carolina,  four  thousand  five  hundred  dollars,  two 
thousand  five  hundred  dollars  of  which  shall  be 
for  the  performance  of  the  duties  of  district  at- 
torney for  the  western  district;  for  the  district 
of  South  Dakota,  four  thousand  dollars;  for 
the  eastern,  middle  and  western  districts  of 
Tennessee,  each  four  thousand  five  hundred 
dollars;  for  the  northern  district  of  Texas,  three 
thousand  five  hundred  dollars;  for  the  eastern 
district  of  Texas,  five  thousand  dollars,  for  the 
western  district  of  Texas,  four  thousand  dollars; 
for  the  district  of  Utah,  four  thousand  dollars;  for 
the  district  of  Vermont,  three  thousand  dollars; 
for  the  eastern  district  of  Virginia,  four  thousand 
dollars;  for  the  western  district  of  Virginia,  four 
thousand  five  hundred  dollars;  for  the  district  of 
Washington,  four  thousand  five  hundred  dollars; 
for  the  district  of  West  Virginia,  four  thousand 
five  hundred  dollars;  for  the  eastern  district  of 
Wisconsin,  four  thousand  dollars;  for  the  western 
Fed.  Peoc— 73. 


§§  262a-264  officees  of  united  states  courts.      866 

district  of  Wisconsin,  four  thousand  dollars;  for 
the  district  of  Wyoming,  four  thousand  dollars. 
(29  U.  8.  Stats.  180.) 

Note.— All  salaries  provided  for  in  the  above  sec- 
tion are  payable  montbly.  (29  U.  S.  Stats.  183,  sec. 
16.) 

§  262  a.  Salaries  of  district  attorneys,  New 
York. — The  district  attorney  for  the  southern  dis- 
trict of  New  York  is  entitled  to  receive  quarterly, 
for  all  his  services,  a  salary  at  the  rate  of  six  thou- 
sand dollars  a  year.     (Rev.  Stats,  sec.  770.) 

§  263.  Duties  of  district  attorneys. — It  shall 
be  the  duty  of  every  district  attorney  to  prosecute, 
in  his  district,  all  delinquents  for  crimes  and  of- 
fenses cognizable  under  the  authority  of  the  United 
States,  and  all  civil  actions  in  which  the  United 
States  are  concerned,  and,  unless  otherwise  in- 
structed by  the  secretary  of  the  treasury,  to  appear 
in  behalf  of  the  defendants  in  all  suits  and  proceed- 
ings in  his  district  against  collectors,  or  other  offi- 
cers of  the  revenue,  for  any  act  done  by  them  or 
for  the  recovery  of  any  money  exacted  by  or  paid 
to  such  officers,  and  by  them  paid  into  the  treasury. 
(Kev.  Stats,  sec.  771.) 

§  264.  Statement  of  suits. — Every  district  at- 
torney shall,  on  instituting  any  suit  for  the  recov- 
ery of  any  fine,  penalty,  or  forfeiture,  immediately 
transmit  to  the  solicitor  of  the  treasury  a  state- 
ment thereof.    (Rev.  Stats,  sec.  772.) 


867  OFFICERS  OF  UNITED  STATES  COURTS.    §§  265-266 

§  265.  Return  of  district  attorneys  to  treas- 
ury.— Every  district  attorney  siiali,  immediately 
after  the  end  of  every  term  of  the  circuit  and  dis- 
trict court  for  his  district,  forward  to  the  solicitor 
of  the  treasury,  except  in  the  cases  provided  in  the 
next  section,  a  full  and  particular  statement  ac- 
companied by  the  certificate  of  the  clerks  of  said 
courts,  respectively,  of  all  causes  pending  in  said 
courts,  and  of  all  causes  decided  therein  during 
such  term,  in  which  the  United  States  are  party. 
He  shall  also,  on  the  first  day  of  October  in  each 
year,  make  a  return  to  said  solicitor  of  the  num- 
ber of  suits  and  proceedings  commenced,  pend- 
ing and  determined  within  his  district  during  the 
fiscal  year  next  preceding  the  date  of  such  re- 
turn, showing  the  date  when  such  proceeding  or 
suit  in  each  case  was  commenced.  If  the  deter- 
mination thereof  has  been  delayed  or  continued 
beyond  the  usual  or  reasonable  period,  the  reasons 
must  be  set  forth,  and  a  statement  must  be  made 
of  the  measures  taken  by  the  district  attorney  to 
press  such  proceedings  or  suit  to  a  close.  (Eev. 
Stats,    sec.  773.) 

§  266.  Returns  of  internal  revenue. — When 
any  suit  or  proceeding  arising  under  the  internal 
revenue  laws,  to  which  the  United  States  are 
party,  or  any  suit  or  proceeding  against  a  collector 
or  other  officer  of  the  internal  revenue,  wherein 
a  district  attorney  appears,  is  commenced,  the  at- 
torney for  the  district  in  which  it  is  brought  shall 
immediately  report  to  the  commissioner  of  inter- 
nal revenue  the  full  particulars  relating  to  the 


§§  267-268    OFFICEBS  OF  UNITED  STATES  COUKTS.  868 

eame;  and  he  shall,  immediately  after  the  end  of 
each  term  of  the  court  in  which  such  suit  or  pro- 
ceeding is  pending,  forward  to  the  said  ccramis- 
sioner  a  full  and  particular  statement  of  its  condi- 
tion.   (Kev.  Stats,  sec.  774.) 

§  267.  Reports  of  district  attorney. — Each  dis- 
trict attorney  shall,  immediately  after  the  end  of 
every  term  in  which  any  suit  for  moneys  due  on 
account  of  the  postoftice  department  has  been 
pending  in  his  district,  forward  to  the  depart- 
ment of  justice  a  statement  of  any  judgment  or 
■order  made,  or  step  taken  in  the  same,  during 
euch  term,  accompanied  by  a  certificate  of  the 
clerk,  showing  the  parties  to  and  amount  of  every 
such  judgment,  with  such  other  information  as  the 
department  of  justice  may  require.  And  the  said 
attorney  shall  direct  speedy  and  effectual  execu- 
tion upon  said  judgment,  and  the  United  States 
marshal  to  whom  the  same  is  directed  shall  make 
returns  of  the  proceedings  thereon  to  the  depart- 
ment of  justice  at  such  times  as  it  may  direct. 
(Eev.  Stats,  sec.  775.) 

§  268.  Marshals'  term. — Marshals  shall  be  ap- 
pointed for  a  term  of  four  years.  (Rev.  Stats,  sec. 
779.)  The  attorneys  and  marshals  of  the  United 
States,  including  the  District  of  Columbia  and 
the  Territories,  shall  continue  to  discharge  the 
duties  of  their  respective  offices,  unless  sooner  re- 
moved by  the  President,  until  -their  successors 
shall  be  appointed  and  qualify  in  their  stead.  But 
they  shall  be  appointed  and  commissioned  for  the 


869       OFFICERS  OF  UNITED  STATES  COURTS.    §§  269   268a 

term  of  four  years  as  now  provided  by  law.  (30 
U.  S.  Stats. -ibl.; 

§  269.     Deputy  marshals  —  Revised  Statutes. — 

Every  marslial  may  appoint  one  or  more  deputies, 
who  shall  be  removable  from  office  by  the  judge 
of  the  district  court  or  by  the  circuit  court  for  the 
district,  at  the  pleasure  of  either.  (Kev.  Stats,  sec. 
780.) 

Note.— Is  the  above  section  superseded  or  repealed 
by  the  next  two  sections,  269  a,  269  b?  A  deputy 
marshal  is  not  an  officer  of  the  United  States,  and 
cannot  maintain  a  suit  against  them  for  services  ren- 
dered. (Powell  V.  United  States,  60  Fed.  Rep.  687.) 
The  marshal  of  Alaska  is  liable  for  acts  done  by  dep- 
uties under  color  of  office  in  serving  processes. 
(Holden  v.  Williams,  75  Fed.  Rep.  798.) 

§  269  a.  Deputy  marshals — Office  deputies — Act 
of  1896. — That,  when  in  the  opinion  of  the  attor- 
ney-general, the  public  interest  requires  it,  he  may 
on  the  recommendation  of  the  marshal,  which  rec- 
ommendation shall  state  the  facts  as  distinguished 
from  conclusions,  showing  necessity  for  the  same, 
allow  the  marshals  to  employ  necessary  office  dep- 
uties and  clerical  assistance,  upon  salaries  to  he 
fixed  by  the  attorney-general  from  time  to  time, 
and  paid  as  hereinafter  provided.  When  any  of 
such  office  deputies  is  engaged  in  the  service  or 
attempted  service  of  any  writ,  process,  subpoena, 
or  other  order  of  the  court,  or  when  necessarily 
absent  from  the  place  of  his  regular  employment, 
on  official  business,  he  shall  be  allowed  his  actual 
traveling  expenses    only,  and    his    necessary  and 


b  269b  OFFICERS  OF  UNITED  STATES  C0UBT8.  870 

actual  expenses  for  lodging  and  subsistence,  not 
to  exceed  two  dollars  per  day,  and  the  necessary 
actual  expenses  in  transporting  prisoners,  includ- 
ing necessary  guard  hire;  and  he  shall  make  and 
render  accounts  thereof  as  hereinafter  provided. 
(29  U.  S.  Stats.  182,  sec.  10.) 

Note.— An  office  deputy  marshal  appointed  by  the 
joint  action  of  the  attorney-general  and  the  marshal 
undei"  the  above  act  is  protected  by  the  civil  service 
rules,  and  is  not  subject  to  removal  by  the  mashai. 
(Priddie  v.  Thompson,  82  Fed.  Rep.  ISU;  but  see  Dud- 
ley V.  James,  83  Fed.  Rep.  345.) 

§  269  b.  Deputy  marshals — Field  deputies — 
Act  of  1896. — That,  at  any  time  when  in  the  opin- 
ion of  the  marshal  of  any  district,  the  public  in- 
terest will  thereby  be  promoted,  he  may  appoint 
one  or  more  deputy  marshals  for  such  district,  who 
shall  be  known  as  field  deputies,  and  who,  unless 
sooner  removed  by  the  district  court  as  now  pro- 
vided by  law,  shall  hold  office  during  the  pleasure 
of  the  marshal,  except  as  hereinafter  provided, 
and  who  shall  each  as  his  compensation  receive 
three-fourths  of  the  gross  fees,  including  mileage 
as  provided  by  law,  earned  by  him,  not  to  exceed 
one  thousand  five  hundred  dollars  per  fiscal  year, 
or  at  that  rate  for  any  part  of  a  fiscal  year;  and, 
in  addition,  shall  be  allowed  his  actual  necessary 
expenses,  not  exceeding  two  dollars  a  day,  while 
endeavoring  to  arrest,  under  process,  a  person 
charged  with  or  convicted  of  crime;  provided,  that 
a  field  deputy  may  elect  to  receive  actual  expenses 
on  any  trip  in  lieu  of  mileage;  provided,  that  in  spe- 


871  OFFICEES  OF  UNITED  STATES  COURTS.  §  270 

cial  cases  where  in  liis  judgment  jiuitice  requires, 
the  attorney-general  may  malce  an  additional  al- 
lowance, not,  however,  in  any  case  to  make  the  ag- 
gregate annual  compensation  of  any  held  deputy  in 
excess  of  twenty-five  hundred  dollars,  nor  more 
than  three-fourths  of  the  gross  fees  earned  by  sUch 
field  deputy.    (29  XJ.  S.  Stats.  183,  sec.  11.) 

§  270.  Marshals'  salaries. — That  the  United 
States  marshal  for  each  judicial  district  of  the 
United  States  shall  be  paid,  in  lieu  of  the  salaries, 
fees,  per  centums,  and  other  compensation  now 
allowed  by  law,  an  annual  salary  as  follows:  For 
the  northern  and  middle  districts  of  the  State  of 
Alabama,  each  four  thousand  dollars;  for  the 
southern  district  of  the  State  of  Alabama,  three 
thousand  dollars;  for  the  Territory  of  Arizona, 
four  thousand  dollars;  for  the  eastern  district  of 
Arkansas,  four  thousand  dollars;  for  the  western 
district  of  Arkansas,  five  thousand  dollars;  for 
the  northern  district  of  California,  four  thousand 
dollars;  for  the  southern  district  of  California, 
three  thousand  dollars;  for  the  district  of  Colo- 
rado, four  thousand  dollars;  for  the  district  of 
Connecticut,  two  thousand  dollars;  for  the  dis- 
trict of  Delaware,  two  thousand  dollars;  for  the 
District  of  Columbia,  five  thousand  five  hun- 
dred dollars;  for  the  northern  and  southern  dis- 
tricts of  Florida,  each  three  thousand  dollars;  for 
the  northern  district  of  Georgia,  five  thousand 
dollars;  for  the  southern  district  of  Georgia,  three 
thousand  five  hundred  dollars;  for  the  district  of 


S  270  OFFICERS  OF  UNITED  STATES  COUBTS.  872 

Idaho,  three  thousand  dollars;  for  the  northern 
district  of  Illinois,  live  thousand  dollars;  for  the 
southern  district  of  Illinois,  four  thousand  five 
hundred  dollars;  for  the  district  of  Indiana,  four 
thousand  five  hundred  dollars;  for  the  northern 
and  southern  districts  of  Iowa,  each  four  thousand 
dollars;  for  the  district  of  Kansas,  four  thousand 
dollars;  for  the  district  of  Kentucky,  five  thousand 
dollars;  for  the  eastern  district  of  Louisiana,  rhree 
thousand  dollars;  for  the  western  district  of  Louis- 
iana, two  thousand  five  hundred  dollars;  for  the  dis- 
trict of  Maine,  three  thousand  dollars;  for  the  dis-  ■ 
trict  of  Maryland,  three  thousand  five  hundred  dol- 
lars; for  the  district  of  Massachusetts,  five  thousand 
dollars;  for  the  eastern  district  of  Michigan,  four 
thousand  dollars;  for  the  western  district  of  Michi- 
gan, three  thousand  dollars;    for    the    district  of 
Minnesota,  four -thousand  dollars;  for  the  northern 
and  southern  districts  of  Mississippi,  each  three 
thoiisand  dollars;  for  the  eastern  district  of  Mis- 
souri, four  thousand  dollars;  for  the  western  dis- 
trict of  Missouri,  four  thousand  dollars;  for  the 
district  of  Montana,  three  thousand  five  hundred 
dollars;  for  the  district  of  Nebraska,  three  thou- 
sand five  hundred  dollars;  for  the  district  of  Ne- 
vada, two  thousand  five  hundred  dollars;  for  the 
district  of  New  Hampshire,  two  thousand  dollars; 
for  the  district  of  New  Jersey,  three  thousand  dol- 
lars; for  the  district  of  New  Mexico,  four  thousand 
dollars;  for  the  northern  district  of  New  York, 
five  thousand  dollars;  for  the  eastern  district  of 
New  York,  four  thousand  dollars;  for  the  southern. 


873  OFFICERS  OF  UNITED  STATES  C0UET3.  §  370 

district  of  JSTew  York,  five  thousand  dollars;  for  the 
eastern  district  of  North  Carolina,  four  thousand 
dollars;  for  the  western  district  of  North  Carolina, 
four  thousand  five  hundred  dollars;  for  the  dis- 
trict of  North  Dakota,  four  thousand  dollars;  for 
the  northern  and  southern  districts  of  Ohio, 
each  four  thousand  dollars;  for  tne  district  of 
Oklahoma,  five  thousand  dollars;  for  the  district 
of  Oregon,  four  thousand  dollars;  for  the  eastern 
district  of  Pennsylvania,  four  thousand  dollars;  for 
the  western  district  of  Pennsylvania,  four  thou- 
sand dolars;  for  the  district  of  Ehode  Island,  two 
thousand  dollars;  for  the  eastern  and  western  dis- 
tricts of  the  district  of  South  Carolina,  four  thou- 
sand five  hundred  dollars,  two  thousand  five  hun- 
dred dollars  of  which  shall  be  for  the  performance 
of  the  duties  of  marshal  of  the  western  district; 
for  the  district  of  South  Dakota,  four  thousand 
dollars;  for  the  eastern,  middle  and  western  dis- 
tricts of  Tennessee,  each  four  thousand  dollars; 
for  the  northern  district  of  Texas,  three  thousand 
dollars;  for  the  eastern  district  of  Texas,  five  thou- 
sand dollars;  for  the  western  district  of  Texas,  four 
thousand  dollars;  for  the  district  of  Utah,  three 
thousand  five  hundred  dollars;  for  the  district  of 
Vermont,  two  thousand  five  hundred  dollars;  for 
the  eastern  district  of  Virginia,  three  thousand  five 
hundred  dollars;  for  the  western  district  of  Vir- 
ginia, four  thousand  dollars;  for  the  district  of 
Wasiiington,  four  thousand  dollars;  for  the 
district  of  West  Virginia,  four  thousand  dollars; 
for  the  eastern  district  of  Wisconsin,  four  thou- 


§§  270a-270b  officers  of  imiTED  states  courts.    874 

sand  dollars;  for  the  western  district  of  Wisconsin, 
four  thousand  dollars;  for  the  district  of  Wyo- 
ming, three  thousand  five  hundred  dollars.  {2^ 
V  S.  stats.  181,  sec.  9.) 

Note  1. — All  salaries  provided  for  in  the  above  sec- 
tion are  payable  monthly.  (29  U.  S.  Stats.  183,  sec. 
16.) 

Note  2.— Prior  to  the  passage  of  the  above  act  the 
marshals  were  allowed  to  retain  fees  collected  up  to 
a  certain  amount,  and  in  certain  districts  marshals 
were  allowed  to  receive  salaries  as  compensation  for 
extra  services.    (See  Rev.  Stats,  sees.  781,  829,  841.) 

§  270  a.     Expenses     allowed    to    marshals. — - 

That  the  marshal  when  attending  court,  at  any 
place  other  than  his  official  residence,  and  when 
engaged  in  the  service  or  attempted  service  of  any 
process,  writ  or  subpoena,  and  when  otherwise 
necessarily  absent  from  his  official  residence  on  of- 
ficial business,  shall  be  allowed  his  necessary  ex- 
penses for  lodging  and  subsistence  not  exceeding 
four  dollars  per  day  and  his  actual  necessary  trav- 
eling expenses.  He  shall  also  be  allowed  the  act- 
ual necessary  expenses  in  transporting  prisoners,  in- 
cluding necessary  guard  hire.  An  account  of  such 
expenses  shall  be  made  out  and  paid  as  hereinafter 
provided.     (29  U.  S.  Stats.  183,  see.  12.) 

§  270  b.  Office  expenses  of  district  attorneys 
and  marshals. — That  the  necessary  office  expenses 
of  the  district  attorneys  and  marshals  shall  be  al- 
lowed when  authorized  by  the  attorney  general. 
(29  U.  S.  Stats.  183,  sec.  14.) 


875      OFFKEKS  OF  UNITED  STATES  COURTS.  g§  270c-270d, 

§  270  c.  Expense  accounts  of  district  attorney 
and  marshal,  approval  and  payment. — That  when- 
ever in  this  act  an  otlicer  is  aiiovved  actual  expen- 
ses, the  account  therefor  shall  be  made  out  quar- 
terly in  accordance  with  rules  and  regulations  pre- 
scribed by  the  attorney  general.  When  made  out 
the  account  shall  be  verified  on  oath  before  an  oifi- 
cer  authorized  to  administer  oaths.  The  expense 
accounts  of  the  marshals  and  their  office  deputies 
and  the  accounts  of  the  field  deputies  shall  be 
paid  by  the  marshals;  said  accounts  and  the  ex- 
pense accounts  of  the  district  attcn'neys  and  their 
assistants,  when  made  out  in  accordance  with  this 
act,  shall  be  submitted  to  and  examined  by  the 
circuit  court  or  district  court  of  the  district,  and 
when  approved  by  the  court  shall  be  audited  and 
allowed  as  now  provided  for  by  law.  Each  mar- 
shal shall  make  such  returns  of  the  earnings  and 
expenses  of  his  office  as  shall  be  required  under 
rules  and  regulations  prescribed  by  the  Attorney- 
General;  provided,  that  no  office  or  field  deputy 
shall  receive  compensation  as  bailiff,  and  no  field 
deputy  shall  receive  fees  for  representing  the  mar- 
shal in  court.     (29  U.  S.  Stats.  183,  sec.  13.) 

Note.— A  marshal  is  not  entitled,  as  between  him- 
self and  the  United  States,  to  credit  for  unpaid  dis- 
bursements, or  for  services  rendered  and  fees  earned 
by  his  deputies,  unless  he  has  paid  for  the  same. 
(Fitzsimmons  v.  United  States,  13  U.  S.  App.  1G6; 
54  Fed.  Rep.  812.) 

§  270  d.  Penalty  for  accepting  compensation 
for  services  other  than  that  provided  by  lav7. — 


§  271  OFFICEES  OF  UNITED  STATES  COURTS.  876 

That  any  officer  whose  compensation  is  fixed  by 
(sections  six  to  fifteen,  inclusive,  of  this  act,  who 
shall  directly  or  indirectly  demand,  receive  or  ac- 
cept any  fee  or  compensation  for  the  performance 
of  any  official  service  other  than  is  herein  pro- 
vided, or  shall  willfully  fail  or  neglect  to  account 
for  or  pay  over  to  the  proper  officer  any  fee  re- 
ceived or  collected  by  him,  shall,  upon  conviction 
thereof,  be  punished  by  a  fine  of  not  less  than  fifty 
dollars,  nor  more  than  five  hundred  dollars,  or  by 
imprisonment,  at  the  discretion  of  the  court,  not 
exceeding  five  years,  or  by  both  such  fine  and  im« 
prisonment.    (29  U.  S.  Stats.  183,  sec.  18.) 

§  271.  Oaths  of  marshals. — Every  marshal  and 
deputy  marshal  shall,  before  he  enters  upon  the 
duties  of  his  appointment,  take,  before  the  district 
judge  of  the  district,  an  oath  or  affirmation  in  the 
following  form:  "I,  A.  B.,  do  solemnly  swear  (or 
affirm)  that  1  will  faithfully  execute  all  lawful 
precepts  directed  to  the  marshal  of  the  district  of 

,  under  the  authority  of  the  United  States, 

and  true  returns  make,  and  in  all  things  well  and 
truly,  and  without  malice  or  partiality,  perform 
the  duties  of  the  office  of  marshal  (or  marshal's 

deputy,  as  the  case  may  be)  of  the  district  of , 

during  my  continuance  in  said  office,  and  take 
only  my  lawful  fees.  So  help  me  God."  The 
words  "so  help  me  God"  shall  be  omitted  in  all 
cases  where  an  affirmation  is  admitted  instead  of 
an  oath;  provided,  that  when  any  person  who  is  ap- 
pointed deputy  marslial  resides  and  is  more  than 
twenty  miles  from  the  place    where   the    district 


877  OFFICERS  OF  UNITED  STATES  COURTS.  g§  271a-373 

judge  resides  and  is,  tLje  said  oath  of  office  may  be 
taken  by  him  before  any  judge  or  justice  of  any 
State  court  within  the  same  district,  or  before  any 
justice  of  the  peace  having  autliority  therein^  or 
before  any  notary  public  duly  appointed  in  such 
State,  or  before  any  commissioner  of  a  circuit 
court  for  such  district,  and  shall,  when  certified  by 
such  officer  to  the  said  district  judge,  be  as  effect- 
ual as  if  taken  before  such  district  judge.  (Eev. 
Stats,  sec.  782.) 

§  271  a.     Oath  of  marshal,  before  whom  taken. 

— That  the  oatli  or  oaths  required  to  be  taken  by 
marshals  and  deputy  marshals  before  entering  up- 
on the  duties  of  their  respective  offices  may  be  ad- 
ministered by  any  officer  of  the  United  States  or 
of  any  State  authorized  by  law  to  administer  oaths. 

(29  U.  S.  Stats.  481.) 

» 

§  272.  Marshal's  bond.-  Every  marshal,  before 
he  enters  on  the  duties  of  his  office,  shall  give  bond 
before  the  district  judge  of  the  district,  jointly  and 
severally  with  two  good  and  sufficient  sureties,  in- 
habitants and  freeholders  of  such  district,  to  be 
approved  by  said  judge,  in  the  sum  of  twenty  thou- 
sand doUars,  for  the  faithful  performance  of  said 
duties  by  himself  and  his  deputies.  Said  bond 
shall  be  filed  and  recorded  in  the  office  of  the  clerk 
of  the  district  court  or  circuit  court  sitting  within 
the  district,  and  copies  thereof,  certified  by  the 
clerk,  under  the  seal  of  the  said  court,  shall  be 
competent  evidence  in  any  court  of  justice.  (Rev. 
Stats,  sec.  783.) 

Fed.  Proc— 74. 


§§  273-274  OFFICERS  of  united  states  courts.         878 

Note. — The  district  judge  aloue  lias  autbority  to 
approve  the  boud  (Jaclison  v.  Simouton,  4  Oranch  0. 
C.  255;  Fed.  Cos.  No.  7147);  and  a  bond  with  only 
one  surety  does  not  comply  with  the  statute.  (Jack- 
son V.  Simonton,  4  Cranch  C.  C.  255;  Fed.  Cas.  No. 
7147.)  So  a  bond  to  the  president  is  not  a  bond  to 
the  United  States.  (Jaclj:son  v.  Simonton,  4  Cranch 
0.  C.  255;  Fed.  Cas.  No.  7147.)  A  marshal  is  not 
qualified  until  he  gives  the  bond  requivod  and  until 
It  is  received  by  the  proper  official  (Jaclvson  v.  Simon- 
ton, 4  Cranch  C.  C.  255;  Fed.  Cas.  No.  7147);  but  if 
he  proves  his  commission  and  his  recognition  as  mar- 
shal by  the  Federal  courts,  it  will  be  presumed  that 
he  conformed  to  the  requirements  of  the  law.  (Kill- 
patriclj  V.  Frost,  2  Grant,  168.)  Where  the  question 
is  as  to  the  proper  construction  of  a  marshal's  bond, 
the  cause  is  removable  into  the  circuit  court.  (Law- 
rence V.  Norton,  13  Fed.  Uep.  1.) 

§  273.     Returns  to  the  solicitor  ot  the  treasury. 

— Every  marshal  shall,  within  thirty  days  before 
the  commencement  of  each  term  of  the  circuit  and 
district  courts  in  his  district,  make  returns  to  the 
solicitor  of  tlie  treasury  of  the  proceedings  had 
upon  all  writs  of  execution  or  other  process,  which 
have  been  placed  in  his  hands  for  the  collection  of 
moneys  adjudged  and  decreed  to  the  United  States 
in  said  coiu'ts,  respectively.    (Rev.  Stats,  sec.  791.) 

§  274.  Returns,  postoffice  department. — Every 
marshal  to  whom  any  execution  upon  a  judgment 
in  any  suit  for  moneys  due  on  account  of  the  post- 
office  department  has  been  directed  sliall  make  re- 
turns to  the  sixth  auditor,  at  such  times  as  he  may 
direct,  of  the  proceedings  which  have  taken  place 


879        OFFICERS  OF  UNITED  STATES  coitrts.  §§  275-375a 

upon  the  said  process  of  execution.     (Eev.  Stats, 
sec.  792.) 

§  275.  Vacancies,  how  filled. — In  case  of  a  va- 
cancy in  the  office  of  district  attorney  or  marshal 
within  any  circuit,  the  circuit  justice  of  such  cir- 
cuit may  fill  the  same,  and  the  person  appointed  by 
him  shall  serve  until  an  appointment  is  made  by 
the  President,  and  the  appointee  is  duly  qualified, 
and  no  longer.  The  appointment  made  by  said 
justice  shall  be  in  vi^riting,  which  shall  be  filed  in 
the  clerk's  office  of  the  circuit  court,  and  a  copy 
thereof  shall  be  entered  upon  the  journal  of  said 
court.  Any  marshal  so  appointed  shall  give  bond, 
as  if  appointed  by  the  President,  and  the  bond 
shall  be  approved  by  said  justice.  It  shall  then  be 
filed  in  the  clerk's  office  of  said  court,  and  a  copy 
shall  be  entered  on  the  journal  of  the  court.  A 
certified  copy  of  such  entry  shall  be  prima  facie 
proof  of  the  execution  of  such  bond,  and  of  the 
contents  thereof.  (Eev.  Stats,  sec.  793.  See  In 
re  Farrow,  3  Fed.  Rep.  116.) 

Note.— Is  the  above  section  repealed  by  the  next 
section? 

§  275  a.  Vacancies  in  office  of  district  attorney 
or  marshal,  how  filled. — In  case  of  a  vacancy  in 
either  of  said  offices  |  attorney  or  marshal],  the  dis- 
trict court  of  the  United  States  for  the  district 
where  such  vacancy  exists,  the  supreme  court  of 
the  Territory,  and  the  supreme  court  of  the  Dis- 
trict of  Columbia  may  appoint  persons  to  exercise 
the  duties  of  such  offices  within  their  respective 


§  276  OFFTCKRS  OF  UNITED  STATES  COURTS.  880 

jurisdictions,  until  such  vacancy  shall  be  filled. 
(30  U.  S.  Stats,  sec.  487.) 
Note. — See  preceding  section. 

§  276.     Suits    on  marshal's    bond — Costs. — In 

case  of  a  breach  of  the  condition  of  the  marshal's 
bond,  any  person  thereby  injured  may  institute  in 
his  own  name  and  for  his  sole  use  a  suit  on  said 
bond,  and  thereupon  recover  such  damages  as  shall 
be  legally  assessed,  with  costs  of  suit,  for  which  ex- 
ecution may  issue  from  him  in  due  form.  If  such 
party  fails  to  recover  in  the  suit,  judgment  shall 
be  rendered  and  execution  may  issue  against  him 
for  costs  in  favor  of  the  defendant;  and  the  United 
States  shall  in  no  case  be  liable  for  the  same.  (Rev. 
Stats,  sec.  784.) 

Note. — An  action  for  a  breacli  of  the  marshal's  bond 
may  be  liroiifrht  in  the  name  of  the  United  States  for 
the  benefit  of  the  party  whose  interests  are  affected. 
(U.  S.  V.  Davidson,  1  Biss.  433;  Fed.  Cas.  No.  14921.) 
It  may  be  brought  in  the  circuit  court,  although  all 
parties  are  citizens  of  the  same  State.  (U.  S.  v.  Da- 
vidson, 1  Blss.  433;  Fed.  Cas.  No.  14921;  Wetmore  v. 
Rice,  1  Biss.  237;  Fed.  Cas.  No.  174G8;  Adler  v.  New- 
comb.  2  Dill.  45;  Fed.  Cas.  No.  83.)  A  declaration 
for  the  breach  should  not  claim  the  entire  penalty 
but  merely  the  damages  sustained.  (Adler  v.  New- 
comb,  2  Dill.  45;  Fed.  Cas.  No.  S3.)  If  an  execution 
creditor  seeks  to  cliarge  the  sureties,  he  cannot  pro- 
ceed summarily,  but  must  proceed  according  to  law. 
(Gwin  v.  Brccdlove.  2  How.  29;  Gwin  v.  Barton,  6 
How.  7.)  Tlie  failure  of  the  United  States  to  present 
their  claim  against  the  estate  of  a  deceased  United 
States  marshal  constitutes  no  defense  to  an  action 


881  OFFICERS  OF  UNITED  STATES  COURTS.    §§  277-279 

against    the    sureties    on    his    official   bond.      (United 
States  V.  Adams,  54  Fed.  Rep.  114.) 

§  277.  Marshal's  bond  to  remain  after  judg- 
ment.— The  said  bond  shall  remain,  after  any 
judgment  rendered  thereon,  as  a  security  for  the 
benefit  of  any  person  injured  by  breach  of  the  con- 
dition of  the  same,  until  the  whole  penalty  has 
been  recovered;  and  the  proceedings  shall  always 
be  as  directed  in  the  preceding  section.  (Rev. 
Stats,  sec.  785.) 

§  278.  Limitation  of  bonds. — No  suit  on  a 
marshal's  bond  shall  be  maintained  unless  it  is 
commenced  within  six  years  after  the  right  of 
action  accrues,  saving,  nevertheless,  the  rights  of 
infants,  married  women,  and  insane  persons,  so 
that  they  sue  within  three  years  after  their  disa- 
bilities are  removed.     (Eev.  Stats,  sec.  786.) 

Note. — This  limitation  does  not  apply  to  an  action 
on  the  marshal's  bond  brought  by  the  United  States. 
(U.  S.  V.  Rand,  4  Sawy.  272;  Fed.  Cas.  No.  16116;  U. 
S.  V.  Godbold,  3  Woods,  550;  Fed.  Cas.  No.  15219.) 
The  statute  does  not  run  against  a  claim  of  proceeds 
of  a  marshal's  sale  suspended  by  appeal  until  after 
affirmance  of  the  decree.  (Montgomery  v.  Hernan- 
dez, 12  Wheat.  129.) 

§  279.  Duties  of  marshal. — It  shall  be  the  duty 
of  the  marshal  of  each  district  to  attend  the  dis- 
trict and  circuit  courts  when  sitting  therein,  and 
to  execute  throughout  the  district  all  lawful  pre- 
cepts directed  to  him,  and  issued  under  the  author- 
ity of  the  United  States;  and  he  shall  have  power 


§  280  OFFICERS  OF  UNITED  STATES  COURTS.  882 

to  command  all  necessary  assistance  in  the  execu- 
tion of  his  duty.     (Rev.  Stats,  sec.  787.) 

Note.— This  section  does  not  apply  to  a  warrant  in 
case  of  e.Ktradition;  sucli  a  warrant  may  be  served 
beyond  ttie  limits  of  the  district.  (In  re  Heinrich,  5 
Blatchf.  414;  Fed.  Cas.  No.  6.369.)  There  is  no  re- 
striction as  to  districts  from  which  precepts  issuei,  or 
to  which  they  are  to  be  returned  (Voss  v.  Lake,  1 
Cranch  C.  G.  331;  Fed.  Cas.  No.  17014);  but  the  sub- 
poena should  be  issued  to  the  mai-shal  of  the  disti-ict 
where  witness  lives.  (Voss  v.  Lalve,  1  Oranch  C.  C. 
331;  Fed.  Cas.  No.  17014;  Sommerrille  v.  French,  1 
Cranch  C.  C.  474;  Fed.  Cas.  No.  13173.)  He  is  a  mere 
ministerial  officer,  and  it  is  no  part  of  his  duty  to 
apply  to  the  district  attorney  to  issue  process.  (Levy 
Court  V.  Ringgold,  5  Peters,  451.)  He  or  his  deputy 
must  serve  original  process,  as  it  cannot  be  served  by 
a  private  person  (Schwabacker  v.  Reilly,  2  Dill.  127; 
Fed.  Cas.  No.  12501);  and  when  process  is  issued  by 
a  commissioner,  It  is  his  duty  to  make  return  thereon 
(United  States  v.  Scroggins,  3  Woods,  529;  Fed.  Cas. 
No.  10244);  but  a  subpoena  may  be  served  by  a  pri- 
vate person.  (Hussell  v.  Ashloy,  Hemp.  .546;  Fed.  Cas. 
No.  12150;  Schwabacker  v.  Reilly,  2  Dill.  127;  Fed. 
Cas.  No.  12501;  Scott  v.  Allen,  6  Phila.  4,S4.)  A  dep- 
uty marshal  may  make  return  of  process,  but  should 
do  so  in  the  name  of  the  marshal.  (Spafford  v.  Good- 
ell,  3  McLean,  97;  Fed.  Cas.  No.  13197.)  Marshal  may 
amend  his  return.  (Intern.  Grain  Ceiling  Co.  v.  Dill, 
10  Ben.  92;  Fed.  Cas.  No.  7053.)  A  deputy  marshal 
Is  an  officer  for  whose  appointment,  qualification,  and 
removal  the  laws  of  the  United  States  expressly  pro- 
vide. (The  E.  W.  Gorga.s,  10  Ben.  460;  Fed.  Cas.  No. 
4585.) 

§  280.     Powers  of  marshals. — The  marshals  and 
their  deputies  shall  have  in  each  State  the  same 


S8:{  OFFICERS  OF  UNITED  STATES  COURTS.  §  280 

powers  in  executing  the  laws  of  the  United  States 
as  the  sheriffs  and  their  deputies  in  such  State 
may  have  by  law  in  executing  the  laws  thereof. 
(Rev.  Stats,  sec.  788.) 

Note.— A  marshal  may  appoint  a  special  bailifif  to 
execute  a  particular  process  (IJ.  S.  v.  .Jailer,  2  Abb. 
U,  S.  265;  Fed.  Cas.  No.  1546.3),  and  the  person  ap- 
pointed by  him  is  an  officer  de  facto.  (Hyman  v. 
Chales,  12  Fed.  Rep.  855;  Hopkins  v.  Chales,  12  Fed. 
Rep.  855.)  This  section  differs  from  earlier  statutes 
only  in  the  substitution  of  the  words  "may  have"  for 
the  word  "have."  But  for  the  circumstance  that  the 
Revised  Statutes  is  declared  to  be  the  re-enactment 
of  laws  already  in  force,  this  change  of  phraseology 
might  be  consti'ued  as  conferring  on  marshals  such 
powers  as  by  State  law  are  confeiTed  on  sheriffs. 
(The  E.  W.  Gorgas,  10  Ben.  470;  Fed.  Cas.  No.  4585.) 
Independently  of  any  rule  of  court  or  statute,  a  mar- 
shal or  sheriff  may  direct  a  particular  ministerial  act 
with  the  performance  of  which  he  is  charged,  to  be 
performed  by  another  acting  for  him  and  under  his 
authority  and  upon  his  responsibility.  (The  E.  W. 
Gorgas,  10  Ben.  467;  Fed.  Cas.  No.  4585.)  A  marshal 
of  the  United  States  has  the  same  power  tO'  keep  the 
peace  of  the  United  States  that  a  sheriff  has  to  keep 
the  peace  of  the  State,  and  is  authorized  to  protect  a 
judge  from  assault  and  murder.  (Cunningham  v. 
Neagle,  135  U.  S.  1.)  Authority  from  the  attorney 
general  and  district  attorney  of  the  United  States  is 
sufficient  to  warrant  a  marshal  in  making  provisions 
for  the  protection  and  defense  of  a  justice  of  the  su- 
preme court  while  in  the  discharge  of  his  duty.  (Cun- 
ningham V.  Neagle,  135  U.  S.  1.)  Under  this  section 
a  marshal,  in  executing  the  laws  of  the  United  States, 
has  the  same  right  to  arrest  without  warrant  as  the 
sheriffs  of  the  State  in  which  is  situated  the  district 


§§281-282   OFFICERS  OF  UNITED  STATES  COURTS.  884 

for  which  the  marshal  acts.     (In  re  Acker,  66  Fed. 
Kep.  290.) 

§  281.  Death  of  marshal. — In  case  of  the  death 
of  any  marshal,  his  deputy  or  deputies  shall  con- 
tinue in  office,  unless  otherwise  specifically  re- 
moved, and  shall  execute  the  same  in  the  name  of 
the  deceased  until  another  marshal  is  appointed, 
as  provided  in  this  chapter,  and  duly  qualified. 
The  defaults  or  misfeasances  in  office  of  such  dep- 
uties in  the  meantime  shall  be  adjudged  a  breach 
of  the  condition  of  the  bond  given  by  the  marshal 
who  appointed  them;  and  the  executor  or  adminis- 
trator of  the  deceased  marshal  shall  have  like  rem- 
edy for  the  defaults  and  misfeasances  in  office  of 
such  deputies,  during  such  interval,  as  he  would 
be  entitled  to  if  the  marshal  had  continued  in  life 
and  in  the  exercise  of  his  said  office  until  his  suc- 
cessor was  appointed  and  duly  qualified.  (Rev. 
Stats,  sec.  789.) 

§  282.  May  execute  process  in  their  hands 
when  removed." — Every  marshal  or  his  deputy, 
when  removed  from  office,  or  when  the  term  for 
which  the  marshal  is  appointed  expires,  shall  have 
power,  notwithstanding,  to  execute  all  such  pre- 
cepts as  may  be  in  their  hands  respectively  at  the 
time  of  such  removal  or  expiration  of  office;  and 
the  marshal  shall  be  held  responsible  for  the  de- 
livery to  his  successor  of  all  prisoners  who  may  be 
in  his  custody  at  the  time  of  his  removal,  or  when 
the  term  for  which  he  is  appointed  expires;  and 
for  that  purpose  he  may  retain  such  prisoners  in 


885  OFFICERS  OF  UNITED  STATES  COURTS,  §  283 

his  custody  until  his  successor  is  appointed  and 
duly  qualilied.     (Kev.  Stats,  sec.  790.) 

Note.— The  word  "execute"  in  this  section  includes 
making  return  to  the  process  executed.  (Gushing  v. 
Laird,  4  Ben.  70;  Fed.  Gas.  No.  3508.)  So  a  marshal 
may  amend  his  return  even  after  he  has  ceased  to 
hold  office.  (Gushing  v.  Laird,  4  Ben.  70;  Fed.  Gas. 
No.  3508.)  So  execution  is  not  complete  until  the 
money  is  made  and  paid  over  to  the  plaintiff,  and  all 
remedies  to  compel  him  to  pay  over  the  money  sur- 
vive his  term  of  office.  (McFarland  v.  Gvpin,  3  How. 
717.)  If  a  marehal  receives  a  writ  of  summons  dur- 
ing his  tea-m,  he  may  serve  it  after  his  successor  is 
qualified.  (Stewart  v.  Hamilton,  4  McLean.  534;  Fed. 
Gas.  No.  13429.)  So  if  execution  is  issued  to  him.  he 
may  make  a  levy  after  his  removal  (Byers  v.  Fowler, 
12  Ark.  218);  and  if  he  make  a  levy  prior  to  removal, 
he  may  sell  the  property  after  his  removal.  (Byers  v. 
Fowler,  12  Ark.  218;  Doolittle  v.  Bryan,  14  How. 
563;  contra.  Overton  v.  Gorham,  2  McLean,  509;  Fed. 
Oas.  No.  10626;  U.  S.  v.  Bank,  Hemp.  460;  Fed.  Gas. 
No.  17904;  Bowerbank  v.  Morris,  Wall.  Sr.  119;  Fed. 
Gas.  No.  1726.)  If  he  make  a  levy  after  his  removal, 
a  sale  by  his  successor  is  irregular,  but  valid  in  a 
collateral  proceeding.  (Byers  v.  Fowler,  12  Ark.  218.) 
The  removal  is  complete  as  soon  as  the  new  marshal 
qualifies,  even  though  no  notice  of  the  removal  is 
given  to  the  old  marshal.  (U.  S.  v.  Bank,  Hemp.  460; 
Fed.  Gas.  No.  17904;  Overton  v.  Gorham,  2  McLean, 
506;  Fed.  Gas.  No.  10626;  contra,  Bowerbank  v.  Mor- 
ris, Wall.  Sr.  119;  Fed.  Gas.  No.  1726.) 

See  power  to  execute  in  Indian  TeiTitory,  25  U.  S. 
Stats.  167. 

§283.     Oath  of  clerks. — The  clerk  of  the  su- 
preme court,  and  every  clerk  and  deputy  clerk  of 


§  284  OFFICERS  OF  UNITED  STATES  COURTS.  886 

a  circuit  or  district  court,  shall,  before  he  enters 
upon  the  execution  of  his  oflice,  take  an  oath  or 
afhrmation  in  the  following  form:  "I,  A.  B.,  being 

appointed  a  clerk  of ,  do  solemnly  swear  (or 

affirm)  that  I  will  truly  and  faithfully  enter  and 
record  all  the  orders,  decrees,  judgments  and  pro- 
ceedings of  the  said  court,  and  that  I  will  faith- 
fully and  impartially  discharge  and  perform  all 
the  duties  of  my  said  office,  according  to  the  best 
of  my  abilities  and  understanding.  So  help  me 
God/'  The  words  "so  help  me  God"  shall  be 
omitted  in  all  cases  where  an  affirmation  is  ad- 
mitted instead  of  an  oath.     (Eev,  Stats,  sec.  794.) 

§  284.  Clerk's  bond.— That  the  clerks  of  the 
supreme  court  and  the  circuit  and  district  courts 
respectively  shall  each,  before  he  enters  upon  the 
execution  of  his  office,  give  bonds,  with  sufficient 
sureties,  to  be  approved  by  the  court  for  which  he 
is  appointed,  to  the  United  States,  in  the  sum  of 
not  less  than  five  and  not  more  than  twenty  thou- 
sand dollars,  to  be  determined  and  regulated  by 
the  attorney  general  of  the  United  States,  faith- 
fully to  discharge  the  duties  of  his  office,  and  sea- 
sonably to  record  the  decrees,  judgments  and  de- 
terminations of  the  court  of  which  he  is  clerk;  and 
it  shall  be  the  duties  of  the  district  attorneys  of 
the  United  States,  upon  requirement  by  the  at- 
torney general,  to  give  thirty  da_vs'  notice  of  mo- 
tion in  their  several  courts  that  new  bonds,  in  ac- 
cordance with  the  terms  of  this  act,  are  required 
to  be  executed;  and  upon  failure  of  any  clerk  to 


8S7  OFFICERS  OF  UNITED  STATES  COUKTS.       §§  285 

execute  such  new  bonds  his  office  shall  be  deemed 
vacant.  The  attorney  general  m&y  at  any  time, 
upon  like  notice,  through  the  district  attorney, 
require  a  bond  of  increased  amount,  in  his  discre- 
tion, from  any  of  said  clerks  within  the  limits  of 
the  amount  above  specified;  and  the  failure  of  the 
clerk  to  execute  the  same  shall  in  like  manner  va- 
cate his  office.  All  bonds  given  by  the  clerks  shall, 
after  approval,  be  recorded  in  their  respective  offi- 
ces, and  copies  thereof  from  the  records,  certified 
by  the  clerks,  respectively,  under  seal  of  court, 
shall  be  competent  evidence  in  any  court.  The 
original  bond  shall  be  filed  in  the  department  of 
justice.  (18  U.  S.  Stats.  333;  1  Sup.  Eev.  Stats. 
145.     See  Rev.  Stats,  sec.  795.) 

Note.— The  addition  "that  the  clerk  shall  faithfully 
account  for  all  moneys,"  does  not  vitiate  the  bond 
(U.  S.  V.  Ambrose,  2  Fed.  Rep.  552);  nor  does  a  condi- 
tion that  the  clerk  shall,  by  himself  or  "by  his  dep- 
uties," faithfully  perform  the  duties  of  his  office. 
(U.  S.  V.  Ambrose,  2  Fed.  Rep.  552.)  Sureties  of  a 
clerk  of  court  cannot  escape  liability  for  his  failure 
to  account  for  money  paid  into  court  under  an  order, 
on  the  gi'ound  that  the  custody  of  such  money  is 
not  a  proper  part  of  his  duties.  (In  re  Finks,  41  Fed. 
Rep.  383.) 

§  285.  Increase  of  bond. — That  whenever  the 
business  of  the  courts  in  any  judicial  district  shall 
make  it  necessary  in  the  opinion  of  the  attorney 
general,  for  the  clerk  or  marshal  to  furnish  greater 
securities  than  the  official  bond  now  required  by 
law,  a  bond  in  a  sum  not  to  exceed  forty  thousand 
dollars  shall  be  given  when  required  by  the  attor- 


§§  286  288  OFFICERS  or  united  states  gouets.         888 

ney  general,  who  shall  fix  the  amount  thereof. 
(18  U.  S.  Stats.  333;  1  Sup.  Eev.  Stats.  145;  liev. 
Stats,  sec.  795.) 

§  286.  Bond  of  deputy  clerks. — Any  circuit  or 
district  court  may  require  any  deputy  clerk  thereof 
to  give  bond  to  the  United  States  for  the  faithful 
discharge  of  his  duty  as  such  deputy,  in  the  same 
penalty,  and  with  surety  in  the  same  manner,  as  is 
required  by  law  of  clerks;  and  such  bond  shall  be 
recorded  and  preserved  in  like  manner,  but  the 
taking  of  such  bond  sliall  not  affect  the  legal  re- 
sponsibility of  the  clerk  for  the  acts  of  such  dep- 
uty. (Rev.  Stats,  sec.  796.  See  United  States  v. 
Ambrose,  2  Fed.  Rep.  553.) 

§  287.  List  of  judgments. — Every  clerk  of  a 
circuit  or  district  court  shall,  within  thirty  days 
after  the  adjournment  of  each  term  thereof,  for- 
ward to  the  solicitor  of  the  treasury  a  list  of  all 
judgments  and  decrees,  to  which  the  United  States 
are  parties,  which  have  been  entered  in  said  courts, 
respectively,  during  such  term,  showing  the 
amount  adjudged  or  decreed,  in  each  case,  for  or 
against  the  United  States,  and  the  term  to  which 
execution  thereon  will  be  returnable.  (Rev.  Stats. 
sec.  797.) 

g  288.  Account  of  payments. — At  each  regular 
session  of  any  court  of  the  United  States,  tbe  clerk 
shall  present  to  the  court  an  account  of  all  moneys 
remaining  therein,  or  subject  to  its  order,  stating 
in  detail  in  what  causes  they  were  deposited,  and 


S89  OFFICERS  OF  UNITED  STATES  COURTS.    §g  289-29tt 

in  what  causes  payments  have  been  made;  and 
said  account  and  tlie  vouchers  thereof  shall  be  filed 
in  the  court.     (Rev.  Stats,  sec.  798.) 

§  289.     Oaths,    who     may     administer. — The 

clerks  of  the  district  and  circuit  courts  may,  in  the 
absence  or  in  case  of  the  disability  of  the  judges, 
administer  oaths  to  all  persons  identifying  papers 
found  on  board  of  vessels  or  elsewhere,  to  be  used 
on  trials  in  admiralty  causes.  (Rev.  Stats,  sec. 
799.)  That  United  States  commissioners  and  all 
clerks  of  United  States  courts  are  hereby  author- 
ized to  administer  oaths.     (29  U.  S.  Stats.  184.) 

§  290.  Powers  and  duties  of  officers. — COLO- 
RADO AND  OTHER  STATES.— The  marshal, 
district  attorney,  and  the  clerk  of  the  circuit  and 
district  courts  of  said  district  of  Colorado,  and  all 
other  officers  and  persons  performing  duties  in  the 
administration  of  justice  therein,  shall  severally 
possess  the  powes  and  perform  the  duties  lawfully 
possessed  and  required  to  be  performed  by  similar 
officers  in  other  districts  of  the  United  States,  and 
shall,  for  the  services  they  may  perform,  receive 
the  fees  and  compensation  allowed  to  other  similar 
officers  and  persons  performing  similar  duties,  by 
the  laws  of  the  United  States,  excepting  such  pro- 
visions thereof  as  are  specially  applicable  to  some 
particular  officer  or  district.  (19  U.  '^.  Stats.  62, 
sec.  4.) 

Fed.  Proc— 75. 


FEES.  890 


CHAPTER  XVI. 

FEES. 

I  291.     Fees  to  be  taxed. 

§  292.     Attorneys,  solicitors  and  proctors. 

§  293.     Fees  In  revenue  cases. 

§  294.     Fees  on  bonds,  when  not  alloAA'ed. 

§  295.     Fees  for  defense  of  revenue  officers. 

§  296.     Clerks'  fees. 

§  297.     Mai-shals'  fees. 

§  298.     Services  rendered  on  account  of  United  States. 

§  299.  Attendance  on  rule  days,  and  circuit  and  dis^ 
trict  courts. 

§  300.  Marshal  of  the  supreme  court  of  the  United 
States. 

§  301.     Semi-annual  return  of  fees. 

§  302.  What  is  to  be  included  in  the  semi-annual  re- 
turns. 

§  302a.  Naturalization  foes  to  be  accounted  for. 

§  302b.  Clerk  of  supreme  court  to  make  returns. 

§  303.  Fees  of  marshal  and  district  attorney  to  be 
covered  into  treasury. 

§  303a.  Examination  of  expense  accounts. 

§  304.  District  attorney  of  southern  district  of  Nev? 
York. 

§  305.  District  attorney  and  marshal  in  Oregon  and 
Nevada. 

§  306.     Prosecution  of  frauds  on  the  revenue. 

§  307.     Compensation  retained  by  a  clerk. 

§  308.     Clerks  in  California,  Oregon  and  Nevada. 

§  309.     Comi)ensation  of  marshal. 

§  310.     Additional  compensation  in  prize  causes. 

§  311.     Mileage. 


891  FEES.  §  291 

§  312.  Mileage,  attorneys,  marshals  and  clei'ks. 

§  313.  Mileage,  jurors  and  witnesses. 

§  314.  Allowances  for  each  year  made  from  the  fees 

thereof. 

§  315.  Payment  of  surplus  fees  into  the  treasury. 

§  316.  Auditing  of  accounts  of  district  attorney. 

§  317.  Attorney  in  District  of  Columbia. 

§  318.  Accounts  to  be  certified  to  by  disti-ict  judge. 

§  319.  Accounts  for  costs  of  clerlis,  etc. 

§  320.  Clerk  failing  to  report  to  be  removed. 

§  321.  Additional  punishment. 

§  322.  District  court  commissioners'  fees. 

§  323.  Witnesses'  fees. 

§  324.  No  officer  of  court  to  have  witness  fees. 

§  325.  Expenses  of  clerks  as  witnesses. 

§  326.  Seamen  sent  home  as  witnesses. 

§  327.  Fees  of  grand  and  petit  jurors. 

§  328.  Mileage  in  Pacific  States. 

§  329.  Printei-s'  fees. 

§  330.  Meaning  of  folio. 

§  331.  Costs  of  printing  records  taxed. 

§  322.  Payment  of  jurors  and  witnesses. 

§  333.  P^'ees  of  district  attorneys,  etc. 

§  333a.  Purchase  of  fees  of  court  officers  prohibited. 

§  334.  Fees,  how  recovered. 

§  335.  Suits  by  poor  persons — Costs  and  counsel. 

§  336.  Afiidavit  when  demand  for  fees  is  made. 

§  337.  Process  to  issue. 

§  338.  Assignment  of  counsel — Costs  on  judgment. 

§  291.  Fees  to  be  taxed. — The  following  and 
no  other  compensation  shall  be  taxed  and  allowed 
to  attorneys,  solicitors,  and  proctors  in  the  courts 
of  the  United  States,  to  district  attorneys,  clerks 
of  the  circuit  and  district  courts,  marshals,  com- 
missioners, witnesses,  jurors,  and  printers  in  the 
several    States   and    Territories,    except    in   cases 


§291  FEES.  892 

otherwise  expressly  provided  by  law.  But  noth- 
ing herein  shall  be  construed  to  prohibit  attorneys, 
solicitors  and  proctors  from  charging  to  and  re- 
ceiving from  their  clients,  other  than  the  govern- 
ment, such  reasonable  compensation  for  their  serv- 
ices, in  addition  to  the  taxable  costs,  as  may  be  in 
accordance  with  general  usage  in  their  respective 
States,  or  may  be  agreed  upon  between  the  parties. 
(Eev.  Stats,  sec.  823.) 

Note.— An  act  which  went  into  effect  ,Tuly  1,  1896 
(29  U.  S.  Stats.  179-186),  provided  that  district  attor- 
neys should  thereafter  receive  rejiular  salaries  as  pro- 
vided therein  in  lieu  of  fees;  that  fees  should  there- 
after be  collected  and  covered  into  the  treasury  of 
the  United  States.  The  act  was  only  partially  ap- 
plicable to  the  southern  district  of  Now  York,  the  Dis- 
trict of  Columbia,  and  Indian  Territory,  and  did  not 
apply  to  Alaska.  It  was  provided  that  the  act  should 
not  be  so  construed  as  to  prevent  or  affect  the  amount 
or  taxation  of  costs  asjainst  the  unsuccessful  party 
in  civil  proceedings  or  against  defendants  convicted 
of  crimes  or  misdemeanors. 

Fees— Generally. — This  section  refers  in  terms  only 
to  compensation,  and  not  expenses  and  disburse- 
ments incurred.  (The  F.  Merwin,  10  Ben.  407;  Fed. 
Oas.  No.  4893.)  The  Federal  statutes  regulate  the 
matter  of  fees  and  costs  in  the  courts  of  the  United 
States,  and  the  statutes  and  practice  of  the  State  are 
not  binding  in  matters  comprehended  by  the  Federal 
statute.  (O'Neil  v.  Kansas  City  etc.  R.  Co.,  31  Fed. 
Rep.  663.)  The  cost  of  printing  the  record  and  testi- 
mony cannot  be  taxed,  although  the  matter  printed 
was  for  the  convenience  of  and  was  used  by  both 
parties  in  the  case,  and  both  united  in  preparing  it. 
(Lee  V.  Simpson,  42  Fed.  Rep,  434.     See  United  States 


893  FEES.  §  291 

V.  Sanborn,  135  U.  S.  271.)  Defendants  who  are  liable 
under  this  sctiou  for  a  fee  of  $20  cannot  be  held 
liable  for  any  further  fee  for  plaintiff's  solicitor. 
lAdams  v.  Kehlor  M.  Co.,  38  Fed.  Rep.  281.)  This 
section  applies  to  clerk's  compensation  in  the  terri- 
tory of  Utah.     (U.  S.  V.  Averill,  130  U.  S.  335.) 

Fees  allowed  to  officers.— This  section  prescribes 
what  fees  are  allowed  to  the  clerk,  district  attorney 
and  other  officers  (U.  S.  v.  Cigars,  2  Fed.  Rep.  105); 
and  nothing  can  be  taxed  as  costs  for  the  services 
of  attorneys,  solicitors,  or  proctors,  except  costs  and 
fees  enumerated  in  the  statute  (Canter  v.  Amer.  Ins. 
Co.,  3  Peters,  307:  The  Baltimore,  8  Wall.  377;  The 
L.iverpool  Packet,  2  Sprague,  37;  Fed.  Cas.  No.  8407; 
Derry  v.  Hersey,  21  Law  Rep.  473);  but  the  fee-bill 
does  not  prevent  a  court  of  equity  from  allowing 
counsel  fees  as  costs  in  certain  cases  (In  re  Waite,  1 
Low,  321;  Fed.  Cas.  No.  7170;  Ex  parte  Plitt,  2  Wall. 
Jr.  453;  Fed.  Cas.  No.  11228),  so,  whether  counsel  fees 
shall  be  allowed  on  a  creditor's  petition  for  an  ad- 
judication of  bankruptcy  rests  with  the  court.  (In 
re  Williams,  2  Bank  Reg.  83;  Fed.  Cas.  No.  17704.) 
Taxable  costs  earned  by  officers  are  their  individual 
property  and  not  that  of  the  parties  to  the  cause  in 
which  they  have  been  earned.  "(Aiken  v.  Smith,  13 
U.  S.  App.  394;  57  Fed.  Rep.  423.)  Costs  can  be  taxed 
for  only  two  counsel  of  the  same  party.  (In  re  Waite, 
1  liow.  321;  Fed.  Cas.  No.  7170.)  An  allowance  of  a 
solicitor's  fee  for  an  overruled  exception  to  a  master's 
report  is  not  proper.  (Garretson  r.  Clark,  17  Blatchf. 
256;  Fed.  Cas.  No.  5249;  S.  C,  15  Blatchf.  70;  Fed. 
Cas.  No.  5248.)  District  attorneys  are  recognized  only 
as  attorneys,  and  are  compensated  as  such  (The 
Nassau,  Blatchf.  Prize,  GOl;  Fed.  Cas.  No.  10027);  and 
the  allowance  of  costs  to  them  is  in  the  jurisdiction 
of  the  judge,  and  not  within  the  power  of  the  officers 


§  291  FEES.  894 

of  the  treasury.  (TJ.  S.  v.  IngersoU,  Crabbe,  135;  Fed. 
Cas.  No.  15440.)  Where  serTices  were  in  part  per- 
formed by  one  district  attorney,  and  in  part  by  his 
successor,  the  fees  taxed  will  be  distributed  between 
them.  (Ex  parte  Robbins,  2  Gall.  320;  Fed.  Cas.  No. 
11879.)  The  statute  is  a  positive  enactment  (The 
Nassau,  Blatchf.  Prize,  601;  Fed.  Cas.  No.  10O27);  and 
must  be  rigorously  enforced.  (Stimpson  v.  Brooks,  3 
Blatchf.  456:  Fed.  Cas.  No.  13454.)  The  prevailing 
party  is  entitled  only  to  such  costs  as  the  statute  al- 
lows (Day  V.  Woodworth,  13  How.  363;  Kneass  v. 
Schuylkill  Bank,  4  Wash.  C.  C.  106;  Fed.  Cas.  No. 
787G);  and  when  a  charge  for  services  is  not  found  in 
the  schedule  of  fees  it  must  be  rejected  (Dedekam  v. 
Vose,  3  Blachf.  153;  Fed.  Cas.  No.  3731;  Lyell  v. 
Miller,  6  McLean,  422;  Fed.  Cas.  No.  8620;  U.  S.  v. 
Smith,  1  Wood.  &  M.  184;  Fed.  Cas.  No.  1634G;  U.  S. 
V.  Packages,  18  Law.  Eep.  284);  but  fees  may  be  al- 
lowed for  matters  not  therein  enumerated.  (Jordan 
V.  Agawam  Wood  Co.,  3  Cliff,  239;  Fed.  Cas.  No.  7516.) 
A  court  of  equity  may  allow  costs  not  presented  in 
the  statute,  and  such  as  justice  and  equity  may  re- 
quire. (Spaulding  v.  Tucker,  2  Sawy.  50;  Fed.  Cas. 
No.  13221.) 

Costs.— Costs  are  not  payable  out  of  the  fund  in 
controversy  (National  Bank  v.  Whitney.  103  U.  S.  99), 
but  each  party  is  liable  to  the  officer  for  fees  for  ser- 
vices performed  for  him  without  respect  to  which  re- 
covers judgment  (Caldwell  v.  Jackson,  7  Cranch,  276; 
In  re  Stover,  1  Curt.  93;  Fed.  Cas.  No.  13506);  and 
security  may  be  required  from  a  non-resident.  (Gross 
&  P.  Manuf'g  Co.  v.  (Jerhard.  8  Kep.  136;  Fed.  Cas. 
No.  5843.)  Commissions  of  the  sheriff  or  marshal  on 
collections,  and  of  the  clerk  for  taking  charge  of  the 
nionoy  arc  part  of  the  costs  of  the  suit.  (Kitchen  v. 
Woodfin,  1  Hughes,  340;  Fed.  Cas.  No.  7855.)  A  party 
Is  not  liable  for  costs  for  not  doing  what  he  was  re- 


895  FEES.  §  292 

strained  by  injunction  from  doing  (Kearney  v.  A  Pile 
Driver,  3  Fed.  Rep.  247);  but  where  delay  in  suing 
was  attributable  to  concealment  in  the  wrong-doer, 
costs  were  alowed.  (The  Christopher  Columbus,  8 
Ben.  239;  Fed.  Cas.  No.  2705.)  No  costs  are  allowed 
on  dismissing  a  bill  and  cross-bill.  (Prime  v.  Bran- 
don Manuf  g  Co.,  16  Blatch.  453;  Fed.  Cas.  No.  11421.) 
The  allowance  or  non-allowance  of  costs  in  an  ad- 
miralty cause  is  a  matter  of  discretion.  (Taylor  v. 
Woods,  3  Woods.  14i;;  Fed.  Cas.  No.  13809;  see  The 
Emily  B.  Souder,  15  Blatchf.  185;  Fed.  Cas.  No. 
4458.)  The  clerli's  fee  of  one  dollar  with  the  note  of 
issue,  on  appeal  in  admiralty,  put  upon  the  calendar, 
is  taxable.  (The  Alice  Tainter,  14  Blatchf.  225;  Fed. 
Cas.  No.  196.)  Where  there  are  cross-libels  In  a  case 
of  collision,  and  both  vessels  were  in  fault,  costs  of 
both  courts  are  equally  divided.  (Vanderbilt  v.  Rey- 
nolds, 16  Blatchf.  80;  Fed.  Cas.  No.  16839.)  The  tax- 
ation of  costs  in  a  cause  removed  is  governed  by 
these  sections  (Clare  v.  National  City  Bank,  14 
Blatchf.  445;  Fed.  Cas.  No.  2793;  and  where  a  suit 
is  removed  it  brings  along  with  it  the  costs  as  an  in- 
cident  (Warren  v.  Ives,  1  Flippin,  356;  Fed.  Cas.  No. 
17197;  Penrose  v.  Penrose,  1  Fed.  Rep.  479;  Kreager 
V.  Judd,  5  Fed.  Rep.  27;  see  Oilman  v.  Libbey,  4 
Cliff.  4.50;  Fed.  Cas.  No.  5445);  but  the  act  of  Congress 
prescribing  what  costs  may  be  taxed  applies  to  such 
costs  as  accrue  after  the  removal  of  the  cause.  (War- 
ren V,  Ives,  1  Flippin,  356;  Fed.  Cas.  No.  17197.) 

§  292.     Attorneys,    solicitors,    and    proctors. — 

On  a  trial  before  a  jury,  in  civil  or  criminal  causes, 
or  before  referees,  or  on  a  final  hearing  in  equity 
or  admiralty,  a  docket  fee  of  twenty  dollars;  pro- 
vided, that  in  cases  of  admiralty  and  maritime  ju- 
risdiction, where  the  libelant  recovers  less  than 


§  292  FEES.  896 

fifty  dollars,  the  docket  fee  of  his  proctor  shall  be 
but  ten  dollars 

In  cases  at  law,  when  judgment  is  rendered 
without  jury,  ten  dollars. 

In  cases  at  law,  when  the  cause  is  discontinued, 
five  dollars. 

For  scire  facias,  and  other  proceedings  on  recog- 
nizances, five  dollars. 

For  each  deposition  taken  and  admitted  in  evi- 
dence in  a  cause,  two  dollars  and  fifty  cents. 

For  services  rendered  in  cases  removed  from  a 
district  to  a  circuit  court  by  writ  of  error  or  ap- 
peal, five  dollars. 

For  examination  by  a  district  attorney,  before  a 
judge  or  commissioner,  of  persons  charged  with 
crime,  five  dollars  a  day  for  the  time  necessarily 
employed. 

For  each  day  of  his  necessary  atendance  in  a 
court  of  the  United  States,  on  the  business  of  the 
United  States,  when  the  court  is  held  at  the  place 
of  his  abode,  five  dollars;  and  for  his  attendance 
when  the  court  is  held  elsewhere,  five  dollars  for 
each  day  of  the  term. 

For  travolinsr  from  the  place  of  his  abode  to 
the  place  of  holding  any  court  of  the  United  States 
in  his  district,  or  to  the  place  of  any  examination 
before  a  judge  or  commissioner, of  a  person  charged 
with  crime,  ten  cents  a  mile  for  going  and  ten 
cents  a  mile  for  returning. 

When  an  indictment  for  crime  is  tried  before  a 
jury  and  conviction  is  had,  the  district  attorney 
may  be  allowed,  in  addition  to  the  attorney's  fees 


897  FEES.  §292 

herein  provided,  a  counsel  fee,  in  proportion  to 
the  importance  and  difficulty  of  the  cause,  not  ex- 
ceeding thirty  dollars.     (Rev.  Stats,  sec.  834.) 

Solicitor's  fees.— The  solicitor's  fee  of  $2.50  allowed 
by  this  section  for  each  deposition  taken  and  ad- 
mitted in  evidence  applies  only  to  an  attorney  or  solic- 
itor, and  cannot  be  allowed  to  a  party  who  is  not  an 
attorney,  appearing  in  his  own  behalf.  (Gorse  v. 
Parl^er,  36  Fed.  Rep.  840.)  The  intervenor  in  an 
equity  case,  who  prevails  in  such  intervention,  is  not 
entitled  to  recover  the  fee.  (Central  Trust  Co.  v.  Wa- 
bash, St.  L.  &  P.  R.  Co.,  32  Fed.  Rep.  684.)  It  applies 
only  to  depositions  taken  de  bene  esse,  and  in  other 
cases  not  within  the  ordinary  method  of  taking  testi- 
mony in  causes  pending  in  Federal  courts;  and  it 
does  not  apply  to  depositions  taken  before  any  of 
the  regular  examining  officers  of  the  court.  (Tuck  v. 
Olds,  29  Fed.  Rep.  883.)  It  cannot  be  allowed  for 
depositions  taken  in  another  suit,  ag.ninst  different 
defendants,  for  the  infringement  of  the  same  patent, 
brought  in  another  district,  and  merely  admitted  in 
evidence  in  the  case  at  bar.  (Cary  v.  Lovell  Mfg.  Co., 
39  Fed.  Rep.  163.)  This  section  does  not  apply  to  tes- 
timony taken  before  a  commissioner  appointed  to 
make  distribution  of  a  fund  in  the  registry  of  a  court 
of  admiralty,  arising  from  the  sale  of  a  vessel. 
(James  Dalzell's  Son  &  Co.  v.  The  Daniel  Kaine,  31 
Fed.  Rep.  746.  See  United  States  v.  Sanborn,  135 
U.  S.  271.)  The  rule  allowing  a  reasonable  solicitor's 
fee  as  costs  to  be  paid  out  of  a  fund  recovered  by  one 
under  a  bill  filed  in  behalf  of  himself  and  other  bene- 
ficiaries under  a  trust  does  not  authorize  the  costs  as 
between  solicitor  and  client  to  be  taxed  against  the 
defendants.  (Adams  v.  Kehlor  Milling  Co..  38  Fed. 
Rep.  281.  See  United  States  v.  Sanborn,  135  U.  S. 
271.) 


§  293  TEES.  898 

Docket  fee.— On  trial  or  final  hearing  a  docket  fee 
of  twenty  dollars  is  taxable.  (The  Bay  City,  3  Fed. 
Rep.  48.)  The  solicitor's  docket  fee  is  not  allowed  for 
a  discontinuance,  but  only  for  a  hearing  on  the  mer- 
its. (Kaempfer  v.  Taylor,  78  Fed.  Rep.  79.j.)  The 
docket  fee  of  twenty  dollars  is  the  highest  compensa- 
tion allowed,  and  it  can  be  allowed  but  once  (Troy 
I.  &  N.  Factory  v.  Corning.  7  Blatchf.  IG;  Fed.  Cas. 
No.  14197;  Dedekam  v.  Vose,  3  Blatchf.  77;  Fed.  Cas. 
37.''0");  but  where  there  were  three  trials— the  firet  re- 
sulting in  a  verdict  for  plaintiff,  and  the  other  two  in 
separate  verdicts  for  defendant— the  defendant's  at- 
torney is  entitled  to  a  docket  fee  of  twenty  dollars 
for  each  of  the  three  trials.  (Schmieder  v.  Barney. 
7  Fed.  Rep.  451.)  Where  three  causes  should  have 
been  consolidated  the  court  should  allow  but  one 
docket  fee.  (The  State  of  Missouri,  46  U.  S.  App. 
245;  76  Fed.  Rep.  376.)  In  a  case  tried  twice  by  a 
jury  w-hich  both  times  disagreed,  and  the  case  was 
dismissed,  a  docket  fee  of  only  five  dollars  is  taxable. 
(Strafer  v.  Carr,  6  Fed.  Rep.  4G6.)  A.  docket  fee  maj" 
be  taxed  in  one  of  a  number  of  cases  embraced  by 
stipulation  in  a  single  hearing.  (Goodyear  D.  V.  Co. 
V.  Osgood,  13  O.  G.  325;  Fed.  Cas.  No.  5594.)  It  can- 
not be  taxed  for  an  attorney  not  admitted  to  the  bar 
of  the  court,  nor  one  whose  name  is  not  on  the  docket 
before  the  filing  of  the  general  replication.  (Good- 
year D.  V.  Co.  V.  Osgood,  13  O.  G.  325;  Fed.  Cas.  No. 
5594.)  It  is  to  be  taxed  in  every  case  where  a  final 
decree  is  entered  after  replication  filed  (Goodyear  D. 
V.  Co.  V.  Osgood,  13  O.  G.  325;  Fed.  Cas.  No. 
5.594.)  There  is  no  distinction  in  admiralty  between 
suits  in  rem  and  suits  in  personam.  (The  Young  Me- 
chanic, 3  Ware,  58;  Fed.  Cas.  No.  18182.)  In  a  sum- 
mary proceeding  where  the  amount  is  less  than  $50 
and  the  libelant's  proctor  lakes  advantage  of  a  rule 
of  court  dispensing  v.-ith  libelant's  stipulation  for 
costs,  no  proctor's  fee  can  be  tsxxed  iu  his  favor  ex 


I 


I 


i 


899  FEES.  §  393 

cept  by  special  allowance  of  court.  (The  Ethel,  59 
Fed.  Rep.  474.)  ''Trial"  means  a  trial  by  jury,  and 
until  the  jury  is  sworn  there  is  no  trial.  (Gordon  v. 
Scott,  2  Bank.  Reg.  8G;  Fed.  Cas.  No.  5620.)  The  Bay 
City,  3  Fed.  Rep.  47.)  "Trial  before  a  jury"  applies 
only  to  cases  where  the  controversy  is  terminated  by 
a  verdict  and  judgment  thereon.  (Strafer  v.  Carr,  6 
Fed.  Rep.  4(3G.)  "Final  hearing"  is  the  submission  of 
a  case  in  equity  for  determination.  (Goodyear  D.  V. 
Co.  V.  Osgood,  13  O.  G.  325;  Fed.  Cas.  No.  5594.)  The 
docket  fee  may  be  allowed,  although  libelants  discon- 
tinue after  a  witness  has  been  sworn  (The  Bay  City, 
3  Fed.  Rep  47);  but  it  is  not  taxable  on  a  motion  for 
an  order  by  default  against  stipulators.  (Dedekam 
V.  Vose,  3  Blatchf.  153;  Fed.  Cas.  No.  3731.)  Where 
the  bill  is  dismissed  with  costs  without  notice  to  de- 
fendants or  hearing  of  the  case,  the  solicitor's  fee  of 
twenty  dollars  will  not  be  allowed.  (Coy  v.  Perkins, 
13  Fed.  Rep.  111.)  The  fee  is  allowed  where  any 
issue  of  law  or  fact  has  been  presented  to  the  court 
for  consideration,  and  where  the  expression  of  the 
court's  opinion  thereon  after  final  hearing  results  in 
a  final  disposition  of  the  cause,  even  though  such  dis- 
position be  a  dismissal  on  motion  of  complainant. 
(Carter  v.  Sweet,  84  Fed.  Rep.  16.)  It  is  only  where 
some  question  of  law  or  fact  involved  in  or  leading  to 
the  final  disposition  of  the  case  has  been  submitted 
or  presented  for  consideration  that  the  fee  of  twenty 
dollars  is  warranted,  as  whei'e  the  court  on  motion 
and  argument  dismisses  an  appeal  for  irregularity. 
(Coy  V.  Perkins,  13  Fed.  Rep.  Ill;  Hayford  v.  Grif- 
fiths, 3  Blatchf.  79;  Fed.  Cas.  No.  6264.)  If  parties 
waive  a  jury  trial,  a  docket  fee  of  only  ten  dollars 
can  be  taxed.  (Jones  v.  Schell,  8  Blatchf.  79;  Fed. 
Cas.  No.  7493.)  It  is  allowable  in  a  Circuit  Court 
when  a  cause  on  appeal  is  on  the  calendar  for  hear- 
ing, and  dismissed  for  want  of  security  for  costs. 


§  292  FEES.  900 

(Hayford  v.  Griffiths,  3  Blatchf.  79;  Fed.  Gas.  No. 
62G4.)  So  when  there  is  no  denial  and  no  contest,  it 
cannot  be  allowed.  (In  re  Mead,  8  Phila.  174.)  Pro- 
ceetlinsrs  before  a  master  upon  a  reference  foT  an 
interlocutory  purpose  is  neither  a  trial  nor  a  final 
hearing,  and  the  docket  fee  cannot  be  allowed 
therefor  (Doughty  v.  Manuf.  Co..  8  Blatchf.  107; 
Fed.  Gas.  No.  4030;  The  Mount  Eden,  87  Fed. 
Rep.  483);  nor  can  a  docket  fee  be  allowed  upon 
exceptions  to  a  commissioner's  report.  (Beck- 
with  V.  Easton,  4  Ben.  357;  Fed.  Gas.  No.  1212.) 
Defendant  in  a  suit  in  equity  dismissed  for  want  of 
prosecution  is  not  entitled  to  a  docket  fee  of  twenty 
dollars.  (Wigton  v.  Brainerd,  24  Blatchf.  18;  Ryan 
V.  Gould,  32  Fed.  Rep.  754;  Central  Trust  Co.  v.  Wa- 
bash. St.  L.  &  P.  R.  Co.,  32  Fed.  Rep.  684.)  A  special 
master  in  chancery  is  not  a  referee,  within  the  mean- 
ing of  this  section  providing  a  docket  fee  of  twenty 
dollars  in  certain  cases.  (Central  Trust  Co.  v.  Wa- 
bash, St.  L.  &  P.  R.  Co.,  32  Fed.  Rep.  684.)  Such  fee 
is  always  taxed- in  a  law  case,  where  there  is  a  final 
trial  before  a  jury.  The  court  determines  who  is  the 
prevailing  party.  (Williams  v.  Morrison,  32  Fed.  Rep. 
682.)  A  proctor  I'epresenting  moi-e  than  one  libelant 
on  final  hearing,  though  under  independent  libels. 
(The  Mount  Eden,  87  Fed.  Rep.  483;  Black  Diamond 
Coal  Co.  V.  The  H.  G.  Grady,  84  Fed.  Rep.  22(5.) 
Where  a  vessel  is  libeled  by  material  men,  and  there- 
after other  material  men  file  libels  in  the  nature  of 
interventions  to  be  perfected  if  the  vessel  is  released, 
otherwise  to  operate  on  the  1)alance  of  the  proceeds 
of  the  sale,  proctor's  costs  should  not  be  allowed  on 
such  subsequent  suits.  (The  Julia,  57  Fed.  Itep.  233.) 
Depos'tions. — The  attornej'  of  the  prevailing  party 
is  entitled  to  the  pay  of  two  dollars  and  a  half  for 
each  deposition  admitted  in  evidence,  when  it  is 
agreed  that  they  may  be  read  on  the  trial  (Jerman  v. 


I 


901  FEES.  §  293 

Stewart  12  Fed.  Rep.  271),  althouje:h  the  witness  at- 
tended and  was  sworn  and  examined  (Beckwith  v. 
Easton,  4  Ben.  357;  Fed.  Cas.  No.  1212);  but  if  the 
depositions  talcen  and  used  in  the  district  court  are 
read  from  the  apostils  of  the  circuit  court,  no  fee  is 
taxable  in  the  circuit  court.  (Dedel^am  v.  Vose,  3 
Blatchf.  77;  Fed.  Cas.  No.  3730.)  The  depositions 
must  be  admitted  in  evidence  in  that  cause  or  no  fee 
will  be  allowed,  even  though  the  coui't  by  order  pro- 
vides for  their  use  in  a  future  suit  (Kaempfer  v.  Tay- 
lor, 78  Fed.  Rep.  795);  but  if  taken  for  use  on  a  mo- 
tion for  a  preliminary  injunction  and  not  used  until 
final  hearing  under  stipulation,  a  fee  should  be  al- 
lowed. (Indianapolis  Water  Co.  v.  American  Straw- 
Board  Co..  65  Fed.  Rep.  534.)  The  cost  of  taking  a 
deposition  be  bene  esse  may  be  taxed  (Fry  v.  Yeaton, 
1  Cranch  C.  0.  550;  Fed.  Cas.  No.  5142);  but  if  the 
party  dispenses  with  the  deposition  and  examines  the 
witness,  the  costs  of  the  deposition  cannot  be  taxed 
(Hathaway  v.  Roach,  2  Wood.  &  M.  G3;  Fed.  Cas.  No. 
6213;  Pinson  v.  Atchison  T.  &  S.  Fe  R.  Co.,  54  Fed. 
Rep.  464);  nor  will  the  fees  of  illegible  depositions  be 
allowed.  (The  Avid,  3  Ben.  4.34;  Fed.  Cas.  No.  678.) 
The  fee  for  depositions  relates  to  testimony  taken  out 
of  court  under  such  authority  as  will  entitle  it  to  be 
read  'as  evidence  in  court  at  the  trial  or  hearing. 
(Troy  I.  &  N.  Factory  v.  Corning,  7  Blatchf.  16;  Fed. 
Cas.  No.  14197.)  Courts  of  the  United  States  will 
allow  the  same  fees  to  any  one  taking  a  deposition  as 
is  allowed  by  the  Revised  Statutes  to  clerks  of  courts 
and  commissioners  (Jerman  v.  Stewart,  12  Fed.  Rep. 
271);  but  a  fee  for  an  ex  parte  affidavit  in  a  proceed- 
ing for  a  preliminary  injunction  is  not  allowable, 
(Stimpson  v.  Brooks,  3  Blatchf.  456;  Fed.  Cas.  No- 
13454.)  The  expenses  of  counsel  while  traveling  to  a 
distant  city  to  take  a  deposition  are  not  taxable.  (The 
William  Branfoot,  8  U.  S.  App.  129;     52  Fed.  Rep. 

¥SD.  I'EOC— 76. 


§  292  FEES.  902 

390.)  A  party  is  entitled  to  tax  costs  for  any  deposi- 
tion taken  in  the  cause,  and  to  wliich  no  exception  is 
made,  though  it  is  not  read  or  offered  in  evidence  at 
the  trial.  (Sloss  Iron  &  Steel  Co.  v.  South  Car.  R.  Co., 
75  Fed.  Kep.  lOG.)  The  costs  of  depositions  of  wit- 
nesses taken  in  good  faith  and  offered  in  evidence  but 
not  used  because  of  the  production  of  the  witnesses 
by  order  of  the  court  may  be  taxed  in  the  bill  of  costs. 
(Nead  v.  Millersburg  Home  Water  Co.,  79  Fed.  Rep. 
129.) 

Expenses— Allowance.— The  statute  does  not  pro- 
hibit the  allowance  of  such  disbursements  as  are  ren- 
dered necessary  by  the  order  of  the  court.  (Dennis  v. 
Eddy,  12  Blatchf.  1S5;  Fed.  Cas.  No.  3793.)  So  if  the 
rule  of  court  requires  papers  or  briefs  to  be  printed, 
their  expenses  may  be  taxed  as  costs.  (Neff  v.  Pen- 
noyer,  3  Sawyer,  335;  P^ed.  Cas.  No.  100S4;  Dennis  v. 
Eddy,  12  Blatchf.  195;  Fed.  Cas.  No.  3793;  Brooks  v. 
Byam,  2  Story,  553;  Fed.  Cas.  No.  1949.)  So  the  cost 
of  printing  the  record  on  appeal  to  the  Supreme  Court 
(Railroad  Co.  v.  The  Collector,  9G  U.  S.  594),  or  the 
record  preparatory  to  a  final  hearing,  may  be  taxed 
(Jordan  v.  Agawam  Wool  Co..  3  Cliff.  239;  Fed.  Cas. 
No.  7516);  but  the  expense  of  printing  testimony  (Hus- 
sey  v.  Bradley,  5  Blatchf.  134,  Fed.  Cas.  No.  4J94G, 
Troy  I.  &  N.  Factory  v.  Corning,  7  Blatchf..  16,  Fed. 
Cas.  No.  14197,  Spaulding  v.  Tucker,  2  Sawy.  50,  Fed. 
Cas.  No.  13221),  or  a  statement  of  the  case  for  the  use 
of  the  judges,  cannot  be  taxed  as  costs.  (The  Pei-se- 
veranee,  3  Dall.  336.)  The  cost  of  copies  of  assign- 
ments appropriate  to  the  case  may  be  taxed  (Hath- 
away v.  Roach,  2  Wood.  &  M.  63,  Fed.  Cas.  No.  6213), 
and  the  amouut  paid  for  telegraphic  dispatches  in  the 
suit  is  allowable,  Avhere  by  attidavit  it  is  shown  to 
have  been  properly  and  necessarily  expended  (Hussey 
V.  Bradley,  5  Blatchf.  21*0;  Fed.   Cas.   No.  6940  a); 


903  FEES.  §  293 

so  postage  paid  on  the  transmission  and  return  of  a 
commission  may  be  allowed.  (Prouty  v.  Drapei*,  2 
Story,  199;  Fed.  Cas.  No.  11447.)  Tlie  expense  of  a 
survey  may  be  charged  against  botti  parties  in  equal 
shares.  (Whipple  v.  Cumberland  C.  Co.,  3  Story,  84; 
Fed.  Cas.  No.  17515.)  The  expenses  of  such  models 
as  are  copies  of  models  in  the  patent  office  is  allow- 
able (Hussey  v.  Bradley,  5  Blatchf.  211,  Fed.  Cas.  No. 
694Ga),  and  their  actual  value  is  taxable  (Hathaway 
V.  Roach,  2  Wood  &  M.  G3;  Fed.  Cas.  No.  6213);  but 
not  the  expense  of  procuring  other  models.  (Hussey 
V.  Bradley,  5  Blatchf.  210;  P^ed.  Cas.  No.  6946  a; 
Woodruff  V.  Barney,  1  Bond.  528;  Fed.  Cas.  No.  17986; 
Hathaway  v.  Roach,  2  Wood  &  M.  63;  Fed.  Cas.  No. 
6213.)  So  the  expense  of  the  model  of  the  infringing 
machine  is  not  allowable  (Parlier  v.  Biglei*,  1  Fish. 
Pat.  Cas.  285;  Fed.  Cas.  No.  10726);  nor  is  defendant 
entitled  to  the  cost  of  procuring  a  copy  of  plaintiff's 
patent.  (Hathaway  v.  Roach,  2  Wood  &  M.  63;  Fed. 
Cas.  No.  C213;  Woodruff  v.  Barney,  1  Bond.  528;  Fed. 
Cas.  No.  17986.)  Expenditures  for  copies  of  pleadings 
and  proofs  are  not  taxable;  and  in  the  absence  of  an 
agreement  to  that  effect,  the  expense  of  reporting  ar- 
gument of  plaintiff's  counsel  on  final  hearing  (Hussey 
V.  Bradley,  5  Blatchf.  210,  Fed.  Cas.  No.  6946  a);  or 
the  expense  of  a  stenographic  reporter,  is  not  taxable 
as  costs.  (Bridges  v.  Sheldon,  18  Blatchf.  507.)  This 
section  does  not  apply  to  costs  for  travel  and  attend- 
ance; these  are  allowed  by  rule  of  court.  (Nichols 
v.  Brunswick,  3  Cliff.  88;  Fed.  Cas.  No.  10239;  Whip- 
ple V.  Cumberland  Coal  Co.,  3  Story,  84;  Fed.  Cas.  No. 
17515;  Hathaway  v.  Roach,  2  Wood  &  M.  63;  Fed. 
Cas.  No.  6213.  See  Sebring  v.  Ward,  4  Wash.  C.  O. 
546;  Fed.  Cas.  No.  12598;  United  States  v.  Sanborn, 
135  U.  S.  271.) 

§  293.     Fees  in  revenue  cases. — -There  shall  be 
taxed  and  paid  to  every  district  attorney  two  per 


S  294  FEES.  904 

centum  upon  all  moneys  collected  or  realized  in 
any  suit  or  proceeding  arising  under  the  revenue 
laws,  and  conducted  by  him,  in  which  the  United 
States  is  a  party,  which  shall  be  in  lieu  of  all  costs 
and  fees  in  such  proceeding.  (Rev.  Stats,  sec.  825.) 

Note.— This  section  applies  to  cases  arising  under 
the  internal  revenue  laws.  (U.  S.  v.  Barrels,  2  Bond, 
7;  Fed.  Cas.  No.  15115.)  It  applies  to  cases  where  the 
money  is  collected  or  realized.  (King  v.  U.  S.  99  U.  S. 
229.)  its  provisions  are  not  affected  by  the  act  of 
June  22,  1874.  (18  U.  S.  Stats.  18G:  U.  S.  v.  One 
Horse,  7  Ben.  405;  Fed.  Cas.  No.  15932.)  The  terms 
^'collected"  and  "realized"  are  synonymous.  (The  Pa^ 
<:ifle,  Deady,  192;  Fed.  Cas.  No.  10G45.)  This  section 
establishes  a  rule  of  compensation  as  to  the  govern- 
ment attorney  (King  V.  U.  S.,  99  U.  S.  229),  who  is 
entitled  to  two  per  cent  on  the  amount  received  (U.  S. 
V.  Barrels,  2  Bond,  7,  Fed.  Cas.  No.  15115),  unless  the 
■claimant  procures  a  remission  of  the  forfeiture.  (The 
Pacific,  Deady,  192;  Fed.  Cas.  No.  10045.)  The  per 
centum  is  in  the  nature  of  a  contingent  upon  the  col- 
lection of  the  money.  (The  Pacific,  Deady,  192;  Fed. 
CJas.  No.  10645.)  In  case  of  a  discovery  of  fraud  in 
another  district,  he  is  entitled  to  percentage  only  on 
the  proportionate  amount  received  on  the  seizure  in 
his  district.  (U.  S.  v.  Ban-els,  2  Bond,  7;  Fed.  Cas. 
No.  15115.)  In  case  of  a  compromise,  the  taxation 
may  be  made  after  the  case  is  dismissed.  (U.  S.  v. 
Barrels,  2  Bond,  7;  Fed.  Cas.  No.  15115.)  In  revenue 
cases  the  district  attorney,  clerk,  and  marshal  may 
retain  their  fees  out  of  the  moneys  collected.  (U.  S. 
V.  Cigars,  2  Fed.  Hep.  494.  See  United  States  v.  San- 
born, 135  U.  S.  271.) 

§  294.     Fees  on    bonds,  when    not    allowed. — 

Kg  fee  shall  accrue  to  any  district  attorney  on  any 


905  FEES.  §§  295-296 

bond  left  with  him  for  collection,  or  in  a  suit  com- 
menced on  any  bond  for  the  renewal  of  which  pro- 
vision is  made  by  law,  unless  the  party  neglects  to 
apply  for  such  renewal  for  more  than  twenty  days 
after  the  maturity  of  the  bond.  (Eev.  Stats,  sec. 
826.) 
Note.— See  United  States  v.  Sanborn,  135  U.  S.  271. 

§  295.     Fees  for  defense  of  revenue  officers. — • 

When  a  district  attorney  appears  by  direction  of 
the  secretary  or  solicitor  of  the  treasury,  on  behalf 
of  any  officer  of  the  revenue  in  any  suit  against 
such  officer,  for  any  act  done  by  him,  or  for  the 
recovery  of  any  money  received  by  him  and  paid 
into  the  treasury  in  the  performance  of  his  offi- 
cial duty,  he  shall  receive  such  compensation  as 
may  be  certified  to  be  proper  by  the  court  in  which 
the  suit  is  brought  and  approved  by  the  secretary 
of  the  treasury.  [See  sec.  4646.]  (Eev.  Stats, 
sec.  827.) 

Note.— The  attorney  should  be  allowed  such  com- 
pensation as  should  be  certified  by  the  court  to  be 
reasonable  and  proper,  and  approved  by  the  secretary 
of  the  treasury.  (White  v.  Arthur,  10  Fed.  Rep.  87.) 
The  words  "officer  of  the  revenue"  mean  an  officer  of 
the  revenue  from  customs.  (Campbell  v.  .Tames,  18 
Blatchf.  196;  see  Campbell  v.  James,  3  Fed.  Rep.  515; 
United  States  v.  Sanborn,  135  U.  S.  271.) 

§  296.  Clerk's  fees. — For  issuing  and  entering 
every  process,  commission,  summons,  capias,  exe- 
cution, warrant,  attachment,  or  other  writ,  except 
a  writ  of  venire,  or  a  summons  or  subpoena  for  wit- 
ness, one  dollar. 


§  296  FEES.  906 

For  issuing  a   writ  of    summons  or   subpoena, 
twenty-five  cents. 

For  filing  and  entering  every  declaration,  plea, 
or  other  paper,  ten  cents. 

For  administering  an  oath  or  affirmation,  except 
to  a  juror,  ten  cents. 

For  taking  an  acknowledgment,  twenty-five 
cents. 

For  taking  and  certifying  depositions  to  file, 
twenty  cents  for  each  folio  of  one  hundred  words. 
For  a  copy  of  such  deposition  furnished  to  a 
party  on  request,  ten  cents  a  folio. 

For  entering  any  return,  rule,  order,  continu- 
ance, judgment,  decree,  or  recognizance,  or 
drawing  any  bond,  or  making  any  record,  certifi- 
cate, return  or  report,  for  each  folio,  fifteen  cents. 
For  a  copy  of  any  entry  or  record,  or  of  any  pa- 
per on  file,  for  each  folio,  ten  cents. 

For  making  dockets  and  indexes,  issuing  venire, 
taxing  costs,  and  all  other  services,  on  the  trial  or 
argument  of  a  cause  where  issue  is  joined  and  tes- 
timony given,  three  dollars. 

For  making  dockets  and  indexes,  taxing  costs, 
and  all  other  services,  in  a  cause  where  issue  is 
joined,  but  no  testimony  is  given,  two  dollars. 

For  making  dockets  and  indexes,  taxing  costs, 
and  other  services,  in  a  cause  which  is  dismissed 
or  discontinued,  or  where  judgment  or  decree  is 
made  or  rendered  without  issue,  one  dollar. 

For  making  dockets  and  taxing  costs,  in  cases 
removed  by  writ  of  error  or  appeal,  one  dollar. 

For  affixing  the  seal  of  the  court  to  any  instru- 
ment, when  required,  twenty  cents. 


907  FEES.  §  296 

For  every  search  for  any  particul£|,r  mortgage, 
judgment  or  other  hen,  fifteen  cents. 

For  searching  the  records  of  the  court  for  judg- 
ments, decrees,  or  other  instrumentsconstituting  a 
general  Hen  on  real  estate,  and  certifying  the  re- 
sult of  such  search,  fifteen  cents  for  each  person 
against  whom  such  search  is  required  to  be  made. 

For  receiving,  keeping,  and  paying  out  money, 
in  pursuance  of  any  statute  or  order  of  court,  one 
per  centum  on  the  amount  so  received,  kept,  and 
paid. 

For  traveling  from  the  office  of  the  clerk,  where 
he  is  required  to  reside,  to  the  place  of  holding 
any  court  required  by  law  to  be  held,  five  cents  a 
mile  for  going  and  five  cents  for  returning,  and 
five  dollars  a  day  for  his  attendance  on  the  court 
while  actually  in  session. 

All  books  in  the  offices  of  the  clerks  of  the  cir- 
cuit and  district  courts,  containing  the  docket  or 
minute  of  the  judgments,  or  decrees  thereof,  shall, 
during  office  hours,  be  open  to  the  inspection  of 
any  person  desiring  to  examine  the  same,  without 
any  fees  or  charge  therefor.  (Rev.  Stats,  sec. 
828.) 

Clerks'  fees.— The  clerk  is  entitled  to  commissions 
on  tlie  proceeds  of  fines,  penalties,  or  forfeitures 
under  the  revenue  laws  (United  States  v.  One  Horse, 
7  Ben.  405;  Fed.  Cas.  No.  15932);  or  on  money  paid 
from  proceeds  of  sale  by  the  marshal  (Ex  parte  Pres- 
cott,  2  Gall.  146;  Fed.  Cas.  No.  11388;  The  Avery,  2 
Gall.  308;  Fed.  Cas.  No.  671;  Clerlis'  Fees,  Taney, 
4.53;  Fed.  Cas.  No.  472);  or  on  money  received  on  exe- 
cution (Kitchen  v.  Woodfin,  1  Hughes,  340;  Fed.  Cas. 


§  296  FEES.  908 

No.  7855;)  but  if  he  receives  money  under  an  execu- 
tion, he  must  look  to  defendant  for  bis  commissions. 
(In  re  Goodrich,  4  Dill.  230;  Fed.  Cas.  No.  5541; 
Upton  V.  Tribilcock,  4  Dill.  230;  Fed.  Cas.  No. 
5541  note.)  He  is  not  entitled  to  commissions  on 
money  held  by  an  assignee  in  bankruptcy  (Leech  v. 
Kay,  4  Fed.  Rep.  72);  and  although  a  fund  is  subject 
to  a  decree  of  court,  he  is  not  entitled  to  a  commission 
unless  it  is  paid  in  (Ex  parte  Plitt,  2  Wall.  Jr.  453; 
Fed.  Cas.  No.  11228);  but  commissions  cannot  be 
claimed  unless  the  money  passes  through  his  hands. 
(Leech  v.  Kay,  4  Fed.  Rep.  72;  Northwestern  Mut. 
Life  Ins.  Co.  v.  Quinn,  69  Fed.  Rep.  4G2.)  The  clerk 
cannot  charge  commissions  when  there  is  no  statute 
requiring  the  assignee  in  bankruptcy  to  pay  the  pro- 
ceeds of  sale  of  real  estate  into  the  registry.  (Leech 
V.  Kay,  4  Fed.  Rep.  72.)  He  is  entitled  to  a  fee  of 
fifteen  cents  for  filing  a  I'equisition  for  search  for 
judgments,  etc.  (In  re  Woodbury,  7  Fed.  Rep.  705; 
S.  C,  17  Blatchf.  517),  and  fifteen  cents  for  each  folio 
of  the  certificate  '(In  re  Woodbury,  7  Fed.  Rep.  70.5), 
and  twenty  cents  for  affixing  the  seal  of  the  court  to 
the  certificate;  but  only  if  required  to  do  so.  (In  re 
Woodbury,  7  Fed.  Rep.  705.)  When  properly  filed  a 
fee  of  ten  cents  is  allowed,  and  when  necessary  to 
enter  a  note  on  the  calendar  of  such  fact  an  addi- 
tional fee  of  fifteen  cents  is  allowed.  (Amy  v.  Shelby 
Co.,  1  Flippin,  104;  Fed.  Cas.  No.  345.)  When  the 
number  of  words  is  less  than  one  hundred  they  are 
counted  a  folio.  (Amy  v.  Shelby  Co.,  1  Flippin,  104; 
Fed.  Cas.  No.  345;  Cavender  v.  Cavender,  10  Fed. 
Rep.  828.)  No  paper  is  filed  unless  it  has  the  proper 
indorsement  of  the  clerk;  merely  placing  it  in  the 
court  papers  is  no  "filing."  (Amy  v.  Shelby  Co.,  1 
Flippin,  104;  Fed.  Cas.  No.  345.)  Services  by  the  clerk 
are  proper  charges  against  the  .United  States  if  they 
are  covered  by  the  terms  of  ihe  fee  bill.    (In  re  Clerks' 


909  FEES.  §  296 

Charges,  5  Fed.  Rep.  440.)  Charges  for  search  in 
bankruptcy  cases  do  not  legally  come  within  the 
terms  of  the  fee  bill  (In  re  Clerks'  Charges,  5  Fed. 
Rep.  440);  and  to  a  fee  of  fifteen  cents  for  a  certifi- 
cate of  search.  (In  re  Woodbury,  7  Fed.  Rep.  705.) 
Though  a  citizen  has  not  the  right  to  inspect  all  the 
books  and  papers  of  a  court  during  office  hours,  yet 
he  may  inspect  the  dockets  or  minute  entries  of  judg- 
ments and  decrees.  (In  re  McLean,  2  Flip.  512;  Fed. 
Cas.  No.  8877.)  For  binding  or  express  charges  he  is 
allowed  the  actual  cost.  (Cavender  v.  Cavender,  10 
Fed.  Rep.  828.)  He  cannot  tax  costs  for  drawing  a 
bond  and  its  approval  when  drawn  by  counsel  and 
approved  by  the  court.  (Cavender  v.  Cavender,  10 
Fed.  Rep.  828.)  The  clerk  is  entitled  to  fees  for  issu- 
ing, entering,  and  filing  returns  of  four  separate  com- 
mitments when  four  separate  bench  warrants  are 
issued  for  the  four  defendants.  (P^uller  v.  United 
States,  58  Fed.  Rep.  329.)  He  is  not  entitled  to  any 
fee  for  administering  oaths  to  answers  of  defendants 
in  scire  facias  cases.  (Fuller  v.  United  States,  58 
Fed.  Rep.  329.)  For  entering  names  of  jurors  with 
postoftice  addresses  on  slips  for  the  jury  box  and  re« 
cording  the  same  in  a  booli  kept  in  his  office,  the  clerk 
is  entitled  to  charge  15  cents  per  folio.  (Fuller  v. 
United  States,  58  Fed.  Rep.  329.)  He  is  entitled  to 
fees  for  copying  into  the  final  record  in  criminal  cases 
all  papers  which  he  is  required  to  so  record  by  an 
order  or  the  court  (Fuller  v.  United  States.  58  Fed. 
Rep.  329);  and  for  filing  reports  made  by  the  dis- 
trict attorney  in  regard  to  officer's  accounts  and  for 
making  entries  on  the  record  showing  presentation  of 
the  accounts  in  open  court.  (Van  Duzee  v.  United 
States,  59  Fed.  Rep.  440.)  He  is  entitled  to  folio  fees 
for  making  separate  record  entries  of  the  various 
steps  and  proceedings  in  a  criminal  case.  (Van  Duzee 
V.  United  States,  59  Fed.  Rep.  440.)      The  clerk  may 


§  396  FEES.  910 

collect  his  costs  as  they  accrue,  and  can  charge  only 
ten  cents  a  folio  for  a  transcript  of  the  record.  (Cav- 
ender  v.  Caveuder,  10  Fed.  Kep.  828;  see  Jerman  v. 
Stewart,  12  Fed.  273;  In  re  U.  S.  v.  Cigars,  2  Fed. 
Kep.  494.)  The  fees  of  the  clerk,  so  far  as  fixed  by 
statute,  are  governed  by  this  section.  The  clerk  can- 
not be  called  on  to  render  service  without  compensa- 
tion, if  the  case  is  not  within  existing  provisions.  He 
is  in  such  case  entitled  to  reasonable  compensation. 
(In  re  \ermeule,  10  Ben.  2;  Fed.  Cas.  No.  16916.)  If 
a  tender  is  first  made  after  suit  brought,  the  clerk'a 
fees  of  one  per  cent  under  this  section  for  receiving, 
keeping,  and  paying  out  the  money,  must  be  paid  by 
the  party  making  the  tender.  (The  Serapis,  37  Fed. 
Rep.  436.)  In  habeas  corpus  proceedings,  costs  are 
not  governed  by  this  section.  The  court  may  in  its- 
discretion,  fix  reasonable  fees.  (Re  Moy  Chee  Kee, 
33  Fed.  Rep.  377.)  This  action  allows  for  "filing  and 
entering  every  declaration,  plea  or  other  paper,  ten 
cents."  Each  deposition  is  not  necessarily  a  "paper" 
within  the  meaning  of  this  clause.  (United  States  v. 
Barber,  140  U.  S.  164;  United  States  v.  Van  Duzee,  140 
U.  S.  169.)  Where  proceedings  for  removal  from  a 
State  court  are  sent  up  in  a  transcript  they  should  be 
entered  upon  the  final  record;  and  the  charge  of  the 
clerk,  of  fifteen  cents  per  folio  for  making  the  record, 
is  lawful  and  proper.  (Blaiu  v.  Home  Ins.  Co.,  30 
Fed.  Rep.  667.)  A  clerk  may  charge  for  seals  upon 
copies  of  orders  which  under  the  rules  require  to  be 
sealed,  as  orders  to  pay  jurors-.  (Manrin  v.  United 
States,  44  Fed.  Rep.  405.)  But  he  is  not  entitled  if 
the  order  need  not  be  sealed.  (Marvin  v.  United 
States,  44  Fed.  Rep.  405;  Jones  v.  United  States,  3& 
Fed.  Rep.  410.)  The  clerk  is  entitled  to  compensa- 
tion for  filing  appointments  of  deputy  marshals  and 
recording  oaths  (United  States  v.  Van  Duzee,  140  U.  S. 
169,  199);  for  furnishing  defendant  a  copy  of  the  in- 


911  FEES.  §  296 

dictment  (Id.) ;  for  filing  processes  for  bench-warrants 
(Id.);  for  any  services  properly  required  of  him  by 
order  of  court.  (Id.)  For  malting  docliets  and  in- 
dexes, he  is  entitled  to  the  fees  prescribed  in  this  sec- 
tion. (Taylor  v.  United  States,  45  Fed.  Rep.  5ol;  Van 
Duzee  v.  United  States,  41  Fed.  Rep.  571.)  For 
■entering  respites  of  jury,  or  orders  of  continuance,  or 
for  entering  a  bail-bond  upon  the  record;  for  usual 
captions  of  records;  for  talving  affidavits  of  govern- 
meut  witnesses;  for  copies  of  orders  to  the  marshal 
to  bring  prisoners  to  the  court  for  trial;  for  certificate 
of  clerli,  and  for  seals  of  the  court  to  copies  of  or- 
ders directing  the  marshal  to  pay  jurors,  etc.;  for 
authentication  of  copies  of  mittimus  (Taylor  v. 
United  States,  45  Fed.  Rep.  531);  for  filing  discharge 
ticliets  of  the  district  attorney,  a  fee  of  ten  cents 
each.  (Id.)  For  tiling  commissioners'  papers  where 
persons  have  been  examined  and  held  to  bail,  he  is 
entitled  to  ten  cents  for  each  paper.  (Id.)  For  each 
person  whose  acicuowledgment  is  talveu,  he  is  en- 
titled to  a  separate  fee  of  twenty-five  cents.  (Id.) 
The  allowance  in  this  section  of  one  per  cent  on  the 
amount  received  and  liept  and  paid  out  by  him,  but 
not  where  the  debt  or  claim  is  settled  by  the  parties 
without  a  sale  of  the  property.  (Smith  v.  Morgan 
City,  30  Fed.  Rep.  572.)  For  incorporating  in  the  final 
records  in  a  criminal  case  the  order  made  by  the  com- 
missioner binding  the  party  to  appear  before  the 
grand  jury,  in  a  district  in  which  it  is  required  that 
the  record  shall  include  such  order,  a  clerii  is  entitled 
to  fees.  (United  States  v.  Van  Duzee,  140  U.  S.  169, 
1Jj9.)  For  copies  of  subpoenas  funiisbed  to  a  marshal 
in  criminal  cases,  to  be  served  upon  witnesses,  a  clerli 
is  entitled  to  fees,  where  there  is  a  rule  of  court  in 
the  district  requiring  him  to  make  such  copies.  (Id.) 
For  filing  oaths,  bonds,  and  appointments  of  deputy 
marshals,  jury  commissioners,  bailiffs,  district  attor- 
neys,  and  their  assistants,   and  for  recording  them 


§  296  FEES.  912 

where  it  is  the  practice  to  require  them  to  be  re- 
corded, a  clerli  is  entitled  to  fees,  but  not  to  the  ex- 
pense of  taliing  the  oaths  and  executing  the  bonds. 
(Id.)  This  section  allows  a  clerk,  "for  talcing  an  ac- 
knowledgment, twenty-five  cents,"  but  the  taking  of 
such  acknowledgment  in  a  criminal  case  by  the  ac- 
cused and  his  sureties  is  a  single  act,  for  which  only 
one  fee  can  be  charged.  (Churchill  v.  United  States, 
25  Ct.  CI.  1;  United  States  v.  Ewing,  140  U.  S.  142.) 
The  clerk  is  not  entitled  to  commissions  for  receiving, 
keeping,  and  paying  out  money,  unless  it  passes 
through  his  hands.  (Easton  v.  Houston  &  T.  C.  R. 
Co.,  44  Fed.  Kep.  718.)  For  making  the  brief  minute 
of  the  date  of  the  case,  pages  of  fee-book  and  record, 
on  the  jacket  in  which  papers  of  a  case  are  enclosed 
gives  him  no  right  to  any  special  compensation.  (Van 
Duzee  v.  United  States,  41  Fed.  Hep.  571.)  Judgment 
records  and  the  indexes  and  cross-indexes  thereto  are 
open  to  the  public,  without  payment  of  any  fee  to  the 
clerk,  (lie  Cliambers,  44  Fed.  liep.  7SG.)  Under  this 
section  the  clerk  of  the  United  States  Circuit  Court 
is  entitled  to  $5  for  every  day  the  court  is  in  session 
under  liev.  Stat.  sees.  2U11-2U14,  providing  for  the 
opening  of  the  court  not  less  than  ten  days  prior  to 
registration  lor  election,  or  prior  to  the  election  for  a 
memner  of  Congress,  and  continuing  court  until  day 
following  the  election,  (i'leasants  v.  United  States, 
35  Fed.  iiep.  2(0.)  The  clerli  is  entitled  to  per  diem 
fees  for  attendance  on  the  court,  not  only  when  the 
judge  is  present,  but  also  for  those  days  when  in  obe- 
dience to  his  order  directing  its  adjournment  to  a  cer- 
tain day  the  officers  are  present  upon  that  day,  and 
the  journal  is  opened  by  the  clerk  and  the  court  is 
adjourned  to  auuther  day  by  the  further  direction  of 
the  judge.  (Luiied  States  v.  I'jtuiuu,  147  U.  S.  GUU.) 
A  cierk  is  entitled  to  lees  for' entering  an  order  of 
court  direciiug  him  as  to  the  dispusiiion  of  muney 
received  tor  iiues  and  lor  luiug  curuucaies  of  deposit 


913  FEES.  §  293 

of  fines.  (Fnited  States  v.  Kurtz,  164  U.  S.  49.)  The 
clerk's  right  to  a  docket  fee  attaches  when  issue  is 
joined  and  is  not  lost  by  the  subsequent  withdrawal 
of  the  plea  which  constitutes  the  issue.  (United 
States  V.  Kurtz,  164  U.  S.  49.)  In  computing  the  fees 
of  a  clerk  in  criminal  cases  the  entire  record  is  to  be 
taken  as  one  instrument,  and  the  folios  counted  con- 
tinuously from  beginning  to  end.  (United  States  v. 
Kurtz,  KM  U.  S.  49.)  A  clerk  is  entitled  to  his  per 
diem  when  the  court  Is  adjourned  and  opened  by  the 
marshal  pursuant  to  the  express  order  of  the  judge. 
(Dart's  Case,  32  Ct.  of  CI.  267.)  He  is  entitled  to 
fees  for  certificates  showing  that  the  duplicate  of  the 
marshal's  accotmt  has  been  duly  filed  with  the  clerk; 
and  to  folio  fees  for  making  entries  showing  approval 
of  bail  bonds  and  continuance  of  trial  from  day  to 
day,  for  entering  orders  of  court  allowing  extra 
compensation  to  the  district  attorney  in  certain  cases, 
and  for  making  certified  copies  of  these  orders,  to  be 
attached  to  the  original  and  duplicate  accounts  (Van 
Duzee  v.  United  States.  .59  Fed.  Rep.  440).  He  is  en- 
titled to  fees  for  malving  duplicate  certified  copies  of 
the  orders  of  the  court  for  the  payment  of  jurors  and 
witnesses,  and  of  orders  directing  the  marshal  to  pro- 
cure record  books  needed  for  the  business  of  the 
court,  but  not  for  affixing  the  seal  to  the  certificate 
thereto;  he  is  entitled  to  fees  for  filing  indictments 
when  returned  by  the  grand  jury,  and  for  making  a 
record  entry  of  the  presentment  and  return  thereof; 
and  of  making  reports  to  the  court  of  the  per  diem 
and  mileage  due  to  jurors  and  witnesses;  and  for 
furnishing  to  the  marshal  two  certified  copies  of  the 
order  of  the  court  directing  the  marshal  to  furnish 
meals  to  jurors  in  criminal  cases,  but  not  for  affixing 
the  seal  thereto  (Van  Duzee  v.  United  States,  59  Fed. 
Rep.  440).  A  United  States  district  court  has  power 
to  make  an  allowance  to  the  clerk  of  the  court  for 
services  rendered  beyond  what  are  required  by  law. 
Fed.  Proc— 77. 


§  2  36  FEES.  914 

Such  compensation  should  be  allowed  in  case  of  a 
transfer  by  him  of  a  large  fund  from  the  depository 
of  a  courl  to  a  trust  company  (The  Advance,  60  Fed. 
Rep.  422).  Clerks  are  not  entitled  to  fees  for  filing 
certificates  of  discharge  of  witnesses,  nor  for  filing 
duplicate  abstracts  and  vouchers,  but  they  are  en- 
titled to  fees  for  entering  orders  of  court  for  the 
marshal  to  pay  witnesses  and  jurors,  for  making  cer- 
tificates to  such  orders,  and  for  taking  and  entering 
of  record  separate  recognizancos  of  witnesses  where  it 
is  shown  that  the  witnesses  could  not  recognize  to« 
gather  without  hardship  (United  States  v.  Converse, 
24  U.  S.  App.  89;  63  Fed.  Rep.  423).  He  is  entitled 
to  charge  for  both  copies  of  a  sentence  delivered  to 
a  marshal  in  a  criminal  case  (United  States  v.  Dundy, 
40  U.  S.  App.  375;  76  Fed.  Rep.  357).  The  United 
States  is  not  liable  to  the  clerk  for  services  performed 
for  a  defendant  in  a  criminal  case  (United  States  v. 
Dundy,  40  U.  S.  App.  375;  76  Fed.  Rep.  357).  A  clerk 
of  the  United  Stales  district  coui't  is  not  entitled  to 
fees  for  swearing  juries,  and  except  in  capital  cases 
is  not  entitled  to  fees  for  making  copies  of  indict- 
ments or  for  affixing  his  seal  thereto  (United  States 
V.  Dundy,  40  U.  S.  App.  375;  76  Fed.  Rep.  357).  He 
is  entitled  to  fees  for  filing  applications  by  defend- 
ants in  criminal  cases  for  orders  directing  witnesses 
to  be  summoned  at  the  cost  of  the  United  States  and 
fees  for  entering  orders  of  court  upon  such  applica- 
tions (Van  Duzee  v.  United  States,  73  Fed.  Rep.  794). 
The  clerk  is  entitled  to  charge  for  copies  of  papers 
furnished  the  district  attorney  for  use  in  preparing 
cases  for  trial  (Van  Duzee  v.  United  States,  73  Fed. 
Rep.  794).  When  two  or  more  persons  are  jointly 
Indicted,  tried  and  convicted,  the  sentence  imposed 
upon  eacli  should  be  separately  entered,  and  the  clerk 
is  entitled  to  a  separate  fee  for  entering  each  sen- 
tence (Van  Duzee  v.  United  States,  73  Fed.  Rep.  794). 
The  proper  docket"  fee  in  criminal  cases  where  a  plea 


915  FEES.  §  297 

of  not  guilty  is  first  entered,  but  is  subsequently  with- 
drawn and  a  plea  of  guilty  entered,  on  which  the 
case  is  disposed,  is  one  dollar  (Van  Duzee  v.  United 
States,  73  Fed.  Hep.  794).  The  clerk  of  the  circuit 
court  is  entitled  to  a  fee  of  one  dollar  for  issuing 
each  commission  to  a  supervisor  of  election  appointed 
pursuant  to  Rev.  Stats.,  sees.  2011,  2012  (United  States 
V.  Fitch,  37  U.  S.  App.  103;  70  Fed.  Kep.  578).  He 
is  entitled  to  fees  for  entering  orders  of  the  court 
approving  marshal's  accounts;  for  certifying  copies 
of  such  orders  to  be  forwarded  to  the  department 
with  accounts,  but  not  for  seals  affixed  to  such  copies 
unless  the  treasury  department  require  the  copy  of 
such  order  to  be  under  seal;  for  copies  of  orders  for 
mar.>hals  to  pay  supervisors  of  election;  for  filin:i-  mar- 
shal's accounts  of  it;  for  mailing  final  records,  which 
also  include  the  order  of  commitment  (United  States 
V.  Jones,  147  U.  S.  672).  The  clerk  of  the  circuit 
court  is  not  entitled  to  per  diem  charge  for  services 
as  clerk  in  selecting  juries  in  connection  with  the 
jury  commissioner;  nor  to  a  charge  for  docketing  and 
indexing  a  summary  application  to  the  judge,  the  pro- 
ceeding not  being  a  "cause";  nor  to  charge  for  making 
separate  reports  of  the  amount  of  fees  due  by  the 
United  States  to  jurors  and  witnesses  for  traveling 
and  attending,  nor  for  filing  separate  orders  of  the 
court  to  pay  the  same;  nor  for  drawing  more  than  one 
recognizance  for  witnesses  in  a  criminal  case  (United 
States  V.  King,  147  U.  S.  676). 

§  297.  Marshals'  fees. — For  service  of  any  war- 
rant, attachment,  summons,  capias,  or  other  writ, 
except  execution,  venire,  or  a  summons  or  sub- 
poena for  a  witness,  two  dollars  for  each  person  on 
whom  service  is  made. 

For  the  keeping  of  personal  property  attached 
on  mesne  process,  such  compensation  as  the  court. 


§  297  FEES.  916 

on  petition  setting  forth  the  facts  under  oath,  may 
allow. 

For  serving  venires  and  summoning  every 
twelve  men  as  grand  or  petit  jurors,  four  dollars, 
or  thirty- three  and  one-third  cents  each.  In  States 
where,  by  the  laws  thereof,  jurors  are  drawn  by  lot, 
by  constables,  or  other  officers  of  corporate  places, 
the  marshal  shall  receive,  for  each  jury,  two  dollars 
for  the  use  of  the  officers  employed  in  drawing  and 
summoning  the  jurors  and  returning  each  venire, 
and  two  dollars  for  his  own  services  in  distributing 
the  venires.  But  the  fees  for  distributing  and 
.serving  venires,  drawing  and  summoning  jurors 
by  township  officers,  including  the  mileage  charge- 
able by  the  marshal  for  each  service,  shall  not  at 
any  court  exceed  fifty  dollars. 

For  holding  a  court  of  inquiry  or  other  proceed- 
ings before  a  jury,  including  the  summoning  of  a 
jury,  five  dollars. 

For  serving  a  writ  of  subpoena  on  a  witness,  fifty 
cents;  and  no  further  compensation  shall  be  al- 
lowed for  any  copy,  summons,  or  notice  for  a  wit- 
ness. 

For  serving  a  writ  of  possession,  partition,  exe- 
cution, or  any  final  process,  the  same  mileage  as  is 
allowed  for  the  service  of  any  other  writ,  and  for 
making  the  service,  seizing  or  levying  on  property, 
advertising  and  disposing  of  the  same  by  sale,  set- 
off, or  otherwise  according  to  law,  receiving  and 
paying  over  the  money,  the  same  fees  and  pound- 
age as  arc  or  shall  be  allowed  for  similar  services  to 
the  sheriffs  of  the  States,  respectively,  in  which  the 
service  is  rendered. 


917  FEES.  §  297 

For  each  bail  bond,  fifty  cents. 

For  summoning  appraisers,  lit'ty  cents  each. 

For  executing  a  deed  prepared  by  a  party  or 
his  attorney,  one  dollar. 

For  drawing  and  executing  a  deed,  five  dollars. 

For  copies  of  writs  or  papers  furnished  at  the 
request  of  any  party,  ten  cents  a  folio. 

For  every  proclamation  in  admiralty,  thirty 
cents. 

F'^or  serving  an  attachment  in  rem  or  a  libel  in 
admiralty,  two  dollars. 

For  the  necessary  expenses  of  keeping  boats, 
vessels  or  other  property  attached  or  libeled  in  ad- 
miralty, not  exceeding  two  dollars  and  fifty  cents 
a  day. 

When  the  debt  or  claim  in  admiralty  is  settled 
by  the  parties  without  a  sale  of  the  property,  the 
marshal  shall  be  entitled  to  a  commission  of  one 
per  centum  on  the  first  five  hundred  dollars  of  the 
claim  or  decree,  and  one-half  of  one  per  centum 
on  the  excess  of  any  siim  thereof  over  five  hun- 
dred dollars;  provided,  that  when  the  value  of  the 
property  is  less  than  the  claim,  such  commission 
shall  be  allowed  only  on  the  appraised  value 
thereof. 

F'or  sale  of  vessels  or  other  property  under  pro- 
cc!fs  in  admiralty,  or  under  the  order  of  a  court  of 
admirafiy,  and  for  receiving  and  paying  over  the 
money,  two  and  one-half  per  centum  on  any  sum 
under  five  hundred  dollars,  and  one  and  one- 
quarter  per  centum  on  the  excess  of  any  sum 
over  five  hundred  dollars. 


§  297  FEES.  918 

i*"or  disbursing  money  to  jurors  and  witnesses, 
and  ior  other  expenses,  two  per  centum. 

I^'or  expenses  wiiile  employed  in  endeavoring  to 
arrest,  under  process,  any  person  charged  witli  or 
convicted  of  a  crime,  the  sum  actually  expended, 
not  to  exceed  two  dollars  a  day,  in  addition  to  his 
compensation  for  services  and  travel. 

For  every  commitment  or  discharge  of  a  pris- 
oner, fifty  cents. 

For  transporting  criminals,  ten  cents  a  mile  for 
himself  and  for  each  prisoner  and  necessary  guard; 
except  in  the  case  provided  for  in  the  next  para- 
graph. 

For  transporting  criminals  convicted  of  a  crime 
in  any  district  or  Territory  where  there  is  no  pen- 
itentiary available  for  the  confinement  of  convicts 
of  the  United  States,  to  a  prison  in  another  dis- 
trict or  Territory  designated  by  the  attorney  gen- 
eral, the  reasonable  actual  expense  of  transporta- 
tion of  the  criminals,  the  marshal,  and  the  guards, 
and  the  necessary  subsistence  and  hire. 

For  attending  the  circuit  and  district  courts, 
when  both  are  in  session,  or  either  of  them  when 
only  one  is  in  session,  and  for  bringing  in  and  com- 
mittincr  prisoners  and  witnesses  during  the  term, 
five  dollars  a  day. 

For  attending  examinations  before  a  commis- 
sioner, and  bringing  in,  guarding  and  returning 
prisoners  charged  with  crime,  and  witnesses,  two 
dollars  a  day;  and  for  each  deputy  not  exceeding 
two,  necessarily  attending,  two  dollars  a  day. 

For  traveling  from  his  residence  to  the  place  of 


919  FEES.  §  297 

holding  court,  to  attend  a  term  thereof,  ten  cents 
a  mile  for  going  only. 

For  travel,  in  going  only,  to  serve  any  process, 
warrant,  attachment,  or  other  writ,  including  writs 
of  subpoena  in  civil  or  criminal  cases,  six  cents  a 
mile,  to  be  computed  from  the  place  where  the 
process  is  returned  to  the  place  of  service,  or,  when 
more  than  one  person  is  served  therewith,  to  the 
place  of  service  which  is  most  remote,  adding 
thereto  the  extra  travel  which  is  necessary  to  serve 
it  on  the  others.  But  when  more  than  two  writs 
of  any  kind  required  to  be  served  in  behalf  of  the 
same  party  on  the  same  person  might  be  served  at 
the  same  time,  the  marshal  shall  be  entitled  to 
compensation  for  travel  on  only  two  of  such  writs; 
and  to  save  unnecessary  expense,  it  shall  be  the 
duty  of  the  clerk  to  insert  the  names  of  as  many 
witnesses  in  a  cause  in  such  subpoena  as  conven- 
ience in  serving  the  same  will  permit. 

In  all  cases  where  mileage  is  allowed  to  the  mar- 
shal he  may  elect  to  receive  the  same  or  his  actual 
traveling  expenses,  to  be  proved  on  his  oath,  to 
the  satisfaction  of  the  court.  ("Rer.  Stats,  sec. 
829.  See  sec.  1660;  also  26  TJ.  S.  Stats.  839;  1  Sup. 
Rev.  Stats.  909.) 

.  Note.— By  an  act  which  went  into  effect  July  1, 
1896  (29  TJ.  S.  Stats.  179-186).  it  was  provided  that 
marshals  should  receive  annual  salaries  as  provided 
in  the  act  in  lieu  of  all  commissions,  fees,  etc..  but 
that  they  should  continue  to  collect  the  sams  fees 
as  formerly  and  turn  them  into  the  hands  of  the 
clerk,  to  be  covered  into  the  treasury.  The  act  did 
not  require  or  authorize  the  charging  of  collection 


§  297  FEES.  920 

of  fees  against  the  United  States,  except  in  certain 
cases  foi-  field  deputies  of  the  mai>;hal.  Expenses 
of  the  marshal  while  traveling  on  business  for  the 
United  States  are  allowed  to  him  (2<J  U.  S.  Stats.  179- 
1S6).  All  fees  received  by  the  marshal,  whether  for 
services  rendered  to  the  government  or  for  those  ren- 
dered to  private  litigants,  are  to  be  turned  over  to  the 
clerk  (united  States  v.  Hillyer,  15  U.  S.  App.  2(jy;  58 
Fed.  Rep.  078).  The  expenses  of  an  outside  keeper 
employed  by  the  marshal  to  take  care  of  the  property 
attached  are  not  "fees  or  emoluments"  to  be  account- 
ed for  or  covered  into  the  treasury  (The  Vandercook, 
77  Fed.  Kep.  865).  Statutes  regulating  officers'  com- 
pensation are  to  be  construed  in  favor  of  the  United 
States  when  the  statutes  admit  of  two  interpreta- 
tions (United  States  v.  Clough,  6  U.  S.  Ajjp.  377;  55 
Fed.  Rep.  373). 

Execution  of  process.— The  fees  of  the  marshal  on 
an  execution  depend  upon  the  law  of  the  State  (Alex- 
.  ander  v.  Thomas',  1  Cranch  C.  C.  1)2;  Fed.  Cas.  No. 
174;  Thomas  v.  Brent,  1  Cranch  C.  C.  161;  Fed.  Cas. 
No.  13893;  Pomroy  v.  Harter,  1  McLean,  448;  Fed. 
Cas.  No.  11263;  In  re  Black,  2  Bank.  Reg.  65;  Fed. 
Cas.  No.  1458);  where  execution  is  extended  on  land, 
he  is  entitled  to  fees  though  the  land  is  not  sold. 
(U.  S.  V.  Smith,  1  Wood.  &  M.  184;  Fed.  Cas.  No. 
16.346.)  The  marshal  is  entitled  to  the  same  fees  and 
poundage  for  serving  an  execution  as  are  allowed  to 
sheriffs  for  similar  services  (U.  S.  v.  Haas,  5  Fed. 
Rep.  29);  but  he  is  not  entitled  to  poundage  on  prop-" 
erty  which  he  does  not  take  into  his  custody  (Ring- 
gold V.  Lewis,  3  Cranch  C.  C.  367;  Fed.  Cas.  No. 
11847);  nor  Is  he  entitled  to  compensation  for  its  cus- 
tody. (The  Ilibernia.  1  Sprague,  78;  Fed.  Cas.  No. 
0455.)  No  allowance  beyond  two  dollars  and  a  half 
per  day  can  be  made  as  necessary  expenses  for  keep- 
ing property  (U.  S.  v.  Barrels,  1  Ben.  72;  Fed.  Cas.  No. 


921  FEES.  §  297 

16509;  The  Circassian.  6  Ben.  512;  Fed.  Cas.  No.  2725; 
The  Trial,  Blatchf.  &  H.  94;  Fed.  Cas.  No.  14170;  The 
Free  Trader,  Brown  Adm.  72;  Fed.  Cas.  No.  5091; 
The  Hibernia,  1  Syrague,  78;  Fed.  Cas.  No.  6455;  Bot- 
tomley  v.  U.  S.,  IStory,  153;  Fed.  Cas.  No.  1689);  but 
if  the  property  be  removed  to  a  warehouse,  such  rea- 
sonable expense  as  has  been  actually  paid  may  be 
allowed  (U.  S.  v.  Barrels,  1  Ben.  72;  Fed.  Cas.  No. 
16509),  and  his  claim  for  compensation  must  be  estab- 
lished by  vouchers  or  otherwise.  (The  Free  Trader, 
Brown  Adm.  72;  Fed.  Cas.  No.  5091;  The  Phoebe.  1 
Ware,  354;  Fed.  Cas.  No.  11065.)  He  cannot  lawfully 
rent  any  building  except  under  order  of  court.  (Per- 
rin  V.  Eppiug,  Chase,  Dec.  430;  Fed.  Cas.  No.  10996.) 
The  fee  for  lieeping  a  vessel  on  process  issued  in 
several  cases  will  be  divided  equally  among  all  the 
cases.  (The  Circassian,  6  Ben.  512;  Fed.  Cas.  No. 
2725;  The  Johu  Walls  Jr.,  1  Sprague,  178;  Fed.  Cas, 
No.  7432.)  He  may  be  allowed  premiums  paid  for 
insurance  during  the  time  the  property  is  in  his  cus- 
tody. (U.  S.  V.  Barrels,  1  Ben.  72;  Fed.  Cas.  No. 
16509.)  Where  the  owner's  of  a  seized  vessel  maintain 
a  man  on  board  for  pumping,  who  is  able  to  do  all 
the  work,  no  charge  for  pumping  can  be  allowed  to 
the  marshal.  (The  Captain  John,  41  Fed.  Rep.  347.) 
Where  a  small  steamer  loaded  with  coal  is  seized  by 
the  marshal  for  forfeiture,  and  has  neither  crew  nor 
engineer-  nor  provisions  on  board,  and  there  are  no 
exti-aordinaiy  circumstances  apparent,  the  marshal 
cannot  be  allowed  more  than  $2.50  per  day  for  lieep- 
ing  the  vessel.     (The  Captain  John,  41  Fed.  Rep.  147.) 

Serving  venire.— Where  jurors  are  drawn  by  a 
State  officer  he  is  entitled  to  a  fee  of  two  dollars  for 
serving  the  venire.  (U.  S.  v.  Cogswell,  3  Sum.  204; 
Fed.  Cas.  No.  14825;  U.  S.  v.  Smith,  1  Wood.  &  M. 
184;  Fed.  Cas.  No.  16346.) 


g  297  FEES.  922 

Commissions.— The  marshal  Is  allowed  commis- 
sions on  all  sales  made  under  an  interlocutory  decree 
(The  Avery,  2  Gall.  308;  Fed.  Cas.  No.  671);  so  he  is 
entitled  to  commissions  where  the  property  is,  by 
contest,  removed  into  another  district  and  sold.  (The 
San  Jose  Indiano,  2  Gall.  311;  Fed.  Cas.  No.  12323; 
see  The  Kussia,  5  Ben.  84;  Fed.  Cas.  No.  12170.)  He 
is  entitled  to  commissions  if  the  case  is  settled  (The 
City  of  Washingrton,  13  Blatchf.  410;  Fed.  Cas.  No. 
2772);  and  although  the  property  is  discharged  on  a 
stipulation  (The  City  of  Washington,  13  Blatchf.  410; 
Fed.  Cas.  No.  2772;  The  Russia,  5  Ben.  84;  B'ed.  Cas. 
No.  12170);  but  he  is  entitled  to  commissions  upon  the 
amount  paid  in  settlement  if  the  case  is  settled  before 
any  claimant  appears.  (The  Scottish  Dale,  65  Fed. 
Kep.  810.)  His  commissions  are  estimated  upon  the 
sum  paid  a  libelant  in  settlement  of  his  claim,  and 
not  on  the  amount  claimed  in  the  libel.  (Robinson  v. 
15,561  Bags  of  Sugar,  35  Fed.  Rep.  603.)  He  is  en- 
titled to  a  commission  upon  the  value  of  a  vessel 
seized  by  him  for  violation  of  law,  and  released  on  a 
remission  of  the  forfeiture  by  the  secretary  of  the 
treasury  on  payment  of  costs.  (The  Captain  John, 
41  Fed.  Rep.  147.)  When  a  claim  is  settled  without 
a  sale  and  the  marshal's  name  nowhere  appears  in 
the  proceedings,  his  compensation  is  not  based  on  any 
seiTice  rendered,  but  is  given  to  him  by  way  of  com- 
pensation for  loss  of  the  opportunity  to  earn  fees. 
(Smith  V.  The  Morgan  City,  39  Fed.  Rep.  572.)  Com- 
missions of  marshal  in  State  of  Washington.  (Dexter 
H.  &  C.  Co.  V.  Sayward,  79  Fed.  Rep.  237.) 

Custody  of  persons. — In  case  of  arrest  the  marshal 
is  entitled  to  the  expense  incurred  in  employing  a 
deputy  (U.  S.  v.  Harker,  3  Sawy.  237;  Fed.  Cas.  No. 
15307);  and  a  fee  for  a  comniitnient  when  a  person  is 
imprisoned  under  final  judgment  or  order  of  court. 
(Ex  parte  Paris,  3  Wood.  &  M.  227;  Fed.  Cas.  No. 


923  FEES.  §  297 

10714.)  If  a  witness  be  held  in  custody  he  is  entitled 
to  a  fee  on  each  day  that  the  witness  is  remanded  to 
jail  (Ex  parte  Paris,  3  Wood  &  M.  227;  Fed.  Cas.  No. 
10714);  and  a  fee  for  discharge  is  allowed  when  the 
prisoner  is  set  at  large.  (Ex  parte  Paris,  3  Wood. 
&  M.  227;  Fed.  Cas.  No.  10714.) 

Mileage.— He  is  entitled  to  mileage  on  a  return  of 
nulla  bona  for  the  distance  actually  traveled  by  him 
or  his  deputies  (Anonymous,  Hemp.  450;  Fed.  Cas.  No. 
448);  but  he  is  not  entitled  to  mileage  for  serving  a 
venire  on  a  State  officer  (U.  S.  v.  Smith,  1  Wood  & 
M.  184;  Fed.  Cas.  No.  16346);  nor  for  serving  a  rule 
to  plead  on  the  defendants.  (Parker  v.  Bigler,  1  Fish. 
Pat.  Cas.  285;  Fed.  Cas.  No.  10726.)  If  he  serves  a 
subpoena  out  of  the  State,  he  cannot  charge  mileage 
for  more  than  one  hundred  miles.  (Parker  v.  Bigler, 
1  Fish.  Pat.  Cas.  285;  Fed.  Cas.  No.  10726.)  Expenses 
necessai'ily  incurred  by  the  marshal  are  not  properly 
taxable.  (The  F.  Merwin,  10  Ben.  407;  Fed.  Cas.  No. 
481)3.)  Where  a  vessel  seized  was  released  on  stipu- 
lation for  her  appraised  value,  the  marshal  is  entitled 
to  his  commissions  on  such  appraised  value.  (The 
Acadia,  10  Ben.  482;  Fed.  Cas.  No.  23.)  Under  this 
section  the  marshal  is  entitled  to  his  commissions 
when,  after  seizure,  the  suit  is  settled  without  an  or- 
der of  sale.  The  commissions  to  be  computed  upon 
the  amount  paid  in  settlement.  (The  Clintonia,  11 
Fed.  Rep.  740,  following  The  Russia,  5  Ben.  84;  Fed. 
Cas.  No.  12170;  The  City  of  Washington,  13  Blatchf. 
410;  Fed.  Cas.  No.  2772),  and  denying  the  Norma, 
Newb.  Adm.  533;  Fed.  Cas.  No.  1626.)  Traveling  ex- 
penses are  allowed  the  marshal  while  attending  court, 
including  the  cost  of  living  when  the  court  is  held 
over  an  intervening  day  by  adjournment.  (United 
States  V.  Harmon,  147  U.  S.  268.)  A  marshal  is  not 
allowed  double  mileage  for  serving  several  writs  at  the 
same  trip.    (Campbell  v.  United  States,  27  U.  S.  App. 


§  298  FEES.  924 

666;  65  Fed.  Rep.  777.)  A  marshal  is  allowed  mileage 
only  on  the  shortest  practicable  route  by  the  ordinary 
mode  of  travel.  (Hitch  v.  United  States,  66  Fed.  Rep. 
937;  Swancoat  v.  Remsen,  76  Fed.  Rep.  950.)  A 
marshal  should  be  allowed  mileage  for  arresting  ana 
taldug  a  prisoner  before  the  commissioner  issuing  the 
wan-ant,  although  there  was  a  nearer  officer  before 
whom  the  prisoner  might  liave  been  talien,  unless  such 
warrant  was  accompanied  by  a  certified  copy  of  the 
complaint.  (Donahower  v.  United  States,  77  Fed. 
Rep.  153;  85  Fed.  Rep.  547.)  Charges  for  meals  and 
traveling  expenses  of  two  deputy  mar.*;hals  for  at- 
tendance at  an  examination  for  the  discharge  of  a 
poor  convict  are  not  allowable  unless  the  charges 
were  necessarily  incurred.  (Donahower  v.  United 
States,  56  U.  S.  App.  467;  85  Fed.  Rep.  545.) 

Per  diem  fees.— Per  diem  fees  are  allowable  even 
though  no  judge  is  present  and  no  business  transacted 
where  the  marshal  is  required  to  attend.  (United 
States  v.  Aldrich,  5  U.  S.  App.  496;  58  Fed.  Rep.  688; 
Kinney  v.  United  States,  6U  Fed.  Rep.  883.) 

§  298.  Services  rendered  on  account  of  United 
States. — There  shall  be  paid  to  the  marshal  his 
fees  for  services  rendered  for  the  United  States, 
for  summoning  jurors  and  witnesses  in  behalf  of 
the  United  States,  and  in  behalf  of  any  prisoner 
to  be  tried  for  a  capital  oil'ensc,  for  the  mainten- 
ance of  prisoners  of  the  United  States  confined 
in  jail  for  any  criminal  offense;  also,  for  his  rea- 
sonable actual  expense  for  tlie  tranportation  of 
criminals,  and  of  the  marshal  and  guards,  to  pris- 
ons designated  by  the  attorney  general,  and  for 
hire  and  subsistence  in  that  behalf,  as  hereinbe- 
fore provided;  also,  his  fees  for  the  commitment 


925  FEES.  §  398 

or  discharge  of  prisoners;  his  expenses  necessarily 
incurred  for  fuel,  lights,  and  other  contingencies 
that  may  accrue  in  holding  the  courts  withiu  his 
district,  and  providing  the  books  necessary  to  re- 
cord the  proceedings  thereof;  provided,  that  he 
shall  not  incur,  or  be  allowed,  an  expense  of  more 
than  twenty  dollars  in  any  one  year  for  furniture, 
or  fifty  dollars  for  rent  of  a  building  and  making 
improvements  thereon,  without  first  submitting 
a  statement  and  estimates  to  the  attorney  general 
and  getting  his  instructions  in  the  premises.  (Eev. 
Stats,  sec.  830.) 

Note.— The  marshal  is  entitled  to  an  allowance  for 
money  expended  for  rent  and  for  clerk  hire  (U.  S.  v. 
Cogswell,  3  Sum.  204:  Fed.  Cas.  No.  14825),  and  for 
personal  expenses  jn  establishing  his  account  with 
government  (U.  S.  v.  Cogswell,  3  Siim.  204;  Fed.  Oas. 
No.  14825),  and  for  maintaining  a  person  committed 
to  his  custody,  pending  trial  of  the  writ  of  habeas 
corpus  (Case  of  the  Runaways,  4  Cranch  C.  C.  489; 
Fed.  Cas.  No.  12137),  and  he  is  entitled  to  interest  on 
items  properly  chargeable  against  government  from 
the  time  of  their  rejection  (IT.  S.  v.  Smith,  1  Wood. 
&  M.  184:  Fed.  Cas.  No.  16346;  U.  S.  v.  Cogswell,  3 
Sum.  204:  Fed.  Cas.  No.  14825);  but  he  is  not  entitled 
to  any  charge  for  superintending  a  State  prison  where 
United  States  prisoners  are  kept.  (U.  S.  v.  Smith,  1 
Wood.  &  M.  184;  Fed.  Cas.  No.  16346.) 

Necessary  expenses.— Meals  furnished  to  jurors 
may  be  charged  for  when  ordered  by  the  court. 
(Donahower  v.  United  States,  77  Fed.  Rep.  1.53;  Camp- 
bell V.  United  States,  27  U.  S.  App.  666;  65  Fed.  Rep. 
777.)  Fees  paid  to  witnesses  for  the  government, 
when  ordered  by  the  court  to  be  paid,  are  allowable 
Fed.  Peoc— 78, 


J  299  FEES,  9-26 

to  the  marshal.  (United  States  v.  Hillyer,  15  U.  S. 
App.  269;  58  Fed.  Rep.  678.)  A  marshal  should  not 
be  allowed  fees  for  unofficial  acts  which  might  be  per- 
formed by  a  messenger.  (Donahower  v.  United 
States,  77  Fed.  Eep.  153.)  A  marshal  will  not  be  al- 
lowed for  ti'avel  and  sei'vice  of  a  subpoena  on  a  wit- 
ness, at  a  place  where  there  was  a  deputy  to  whom 
the  subpoena  could  have  been  served.  (Donahower 
V.  United  States,  77  Fed.  Eep.  153.)  A  marshal  is  en- 
titled to  be  reimbursed  for  money  actually  paid  for 
guards  for  prisoners  attending  court.  (Dill  v.  United 
States,  78  Fed.  Rep.  614.)  While  ti-ansporting  pris- 
oners to  a  penitentiary,  involving  a  trip  of  thirty-six 
hours,  the  marshal  is  entitled  to  engage  a  berth  in  a 
sleeping-car,  and  the  cost  of  the  same  is  chargeable 
to  the  United  States.  (Puleston  v.  United  States,  85 
Fed.  Rep.  571.)  He  is  entitled,  under  the  act  of  1896, 
to  be  reimbursed  for  affidavits  to  his  annual  accounts. 
(Puleston  V.  United  States,  85  Fed.  Rep.  571.)  Only 
actual  expenses  are  allowed  for  transporting  a  Chi- 
nese person  to  the  seaboard.  (Jacobus  v.  United 
States,  87  Fed.  Eep.  99.) 

Serving  papers.— A  marshal  is  entitled  to  reason- 
able comiieusation  for  serving  a  complaint  and  sum- 
mons (Swancoat  v.  Remsen,  76  Fed.  Rep.  950). 

§  299.  Attendance  on  rule  days  and  when  cir- 
cuit and  district  courts  sit  at  same  time. — No  per 

diem  or  other  allowance  shall  be  made  to  any  dis- 
trict attorney,  clerk  of  a  circuit  court,  clerk  of  a 
district  court,  marshal  or  deputy  marslia],  for  at- 
tendance at  rule  days  of  a  circuit  or  district  court; 
and  when  the  circuit  and  district  courts  sit  at  the 
same  time,  no  greater  per  diem  or  other  allowance 
shall  be  made  to  any  such  officer  tlian  for  an  at- 
tendance on  one  court.     (Rev.  Stats,  sec.  831.) 


927  FEES.  §j  300-301 

Note.— No  allowance  for  constructive  travel  and 
attendance.  (TJ.  S.  v.  Cogswell,  3  Sum,  204;  Fed. 
Cas.  No.  14825.)  If  the  fees  of  either  officer  fall 
below  the  maxiujum  he  is  entitled  only  to  that 
amount,  although  the  fees  of  the  other  exceed  the 
maximum.  (U.  S.  v.  Bassett,  2  Story,  389;  Fed.  Cas. 
No.  14639.) 

§  300.  Marshal  of  the  supreme  court  of  the 
United  States. — The  marshal  of  the  supreme  court 
of  the  United  States  shall  he  entitled  to  receive  for 
the  service  of  any  warrant,  attachment,  summons, 
capias,  or  other  writ,  except  execution,  venire,  or 
a  summons  or  subpoena  for  a  witness,  one  dollar 
for  each  person  on  whom  such  services  may  be 
made.  His  fees  for  all  other  services  shall  be  the 
same  as  are  herein  allowed  to  other  marshals;  but 
he  shall  pay  into  the  treasury  of  the  United  States 
all  fees  received  by  him,  and  render  a  true  account 
thereof  at  the  close  of  each  term  to  the  attorney 
general.  (Rev.  Stats,  sec.  832.) 

§•301.  Sem-annual  return  of  fees. — Every  dis- 
trict attorney,  clerk  of  a  district  court,  clerk  of  a 
circuit  court,  and  marshal,  shall,  on  the  first 
days  of  January  and  July  in  each  year,  or 
within  thirty  days  thereafter,  make  to  the  at- 
torney-general, in  such  form  as  he  may  pre- 
scribe, a  written  return  for  the  half  year  end- 
ing on  said  days,  respectively,  of  all  the  fees  and 
emoluments  of  his  office,  of  every  name  and  char- 
acter, and  of  all  the  necessary  expenses  of  his  of- 
fice, including  necessary  clerk  hire,  together  with 
the  vouchers  for  the  payment  of  the  same  for  such 


§  302  FEES.  928 

last  half  year.  He  shall  state  separately  in  return 
the  fees  and  emoluments  received  or  payable  under 
the  bankrupt  act;  and  every  marshal  shall  state 
separately  therein  the  fees  and  emoluments  re- 
ceived or  payable  for  services  rendered  by  himself 
personally,  those  received  or  payable  for  services 
rendered  by  each  of  his  deputies,  naming  him,  and 
the  proportion  of  such  fees  and  emoluments  which, 
by  the  terms  of  his  service,  each  deputy  is  to  re- 
ceive. Said  returns  shall  be  verified  by  the  oath 
of  the  officer  making  them.  (Eev,  Stats,  sec.  833. 
See  sees.  3085,  4644,  4647.) 

Note.— Until  the  passage  of  the  act  of  1898,  post, 
§  302  a,  fees  charged  by  the  clerk  of  a  district  court 
in  naturalization  cases  were  not  required  to  be  ac- 
counted for  under  this  section  (U.  S.  v.  Hill,  120  U. 
S.  169.)  If  the  fees  of  either  officer  fall  below  the 
maximum  he  is  entitled  only  to  that  amount,  al- 
though the  fees  of  the  other  exceed  the  maximum. 
(U.  S.  V.  Bassett,  2  Story,  389;  Fed.  Gas.  No.  14539.) 

§  302.  What  to  be  included  in  the  semi-annual 
returns. — The  preceding  sectioii  shall  not  apply  to 
the  fees  and  compensation  allowed  to  district  at- 
tornej^s  by  sections  eight  hundred  and  twenty-five 
and  eight  hundred  and  twenty-seven.  All  other 
fees,  charges  and  emoluments  to  which  a  district 
attorney  or  a  marshal  may  be  entitled,  by  reason  of 
the  discharge  of  tlie  duties  of  his  office,  as  now 
or  hereafter  prescribed  by  law,  or  in  any  case  in 
which  the  United  States  will  be  bound  by  the 
judgment  rendered  therein,  whether  prescribed  by 
statute  or  allowed  by  a  court,  or  any  judge  there- 


929  PEES.  §§  302a-302b 

of,  shall  be  included  in  the  semi-annual  return  re- 
quired of  said  ofiicers  by  the  preceding  section. 
(Eev.  Stats,  sec.  834.) 

Note. — The  term  "officer  of  the  revenue"  means  an 
officer  of  the  revenue  from  customs.  (Campbell  v. 
James,  18  Blatchf.  196;  S.  O.  3  Fed.  Rep.  515.)  His 
claim  for  credit  for  taxable  costs  not  taxed  cannot 
be  admitted  on  a  ti'ial  unless  presented  and  disal- 
lowed. (United  States  v.  lugersoll,  Crabbe,  135;  Fed. 
Gas.  No.  15440.) 

§  302  a.  Naturalization  fees  to  be  included  in 
clerk's  return. — All  clerks  of  courts  of  the  United 
States  shall  pay  over,  at  the  times  and  in  the  man- 
ner provided  by  law  for  other  fees  and  emoluments 
all  fees  received  by  them  for  naturalization,  after 
deducting  the  amount  of  compensation  they  are 
entitled  to  receive.    (30  U.  S.  Stats.  317.) 

Note.— Prior  to  the  passage  of  the  above  act,  clerks 
were  not  required  to  include  fees  charged  in  natura- 
lization cases  (United  States  v.  Hill;  120  U.  S.  169). 

§  302  b.  Clerk  of  supreme  court  to  make  re- 
turn of  fees. — The  clerk  of  the  Supreme  Court  of 
the  United  States  on  the  first  day  of  January  in 
each  year,  or  within  thirty  days  thereafter,  shall, 
on  a  form  prescribed  by  the  Attorney-General, 
make  to  the  Attorney-General  a  return,  under  oath, 
of  all  fees  and  costs  collected  by  him  in  cases  dis- 
posed of  at  the  preceding  term  or  terms  of  the 
court,  and  of  all  emoluments  hereafter  collected  by 
him,  and  after  deducting  from  such  collections 
his  compensation  as  provided  in  paragraph  nine 
of  the  Act  of  March  third,  eighteen  hundred  and 


§  303  FEES.  930 

eighty-three  (22  Statutes  at  Large,  603-631),  and 
the  incidental  expenses  of  his  office,  including 
clerk  hire,  such  expenses  to  be  certified  by  the 
chief  justice,  and  audited  and  allowed  by  the 
proper  accounting  officers  of  the  treasur)^,  shall  at 
the  time  of  making  such  returns  pay  any  surplus 
that  may  remain  into  the  Treasury  of  the  United 
States.    (30  U.  S.  Stats.  317.) 

§  303.  Fees  of  marshals  and  district  attorney 
to  be  covered  into  treasury. — That  on  and  after 
the  first  day  of  July,  eighteen  hundred  and  ninety- 
six,  all  fees  and  emoluments  authorized  by  law  to 
be  paid  to  United  States  district  attorneys  and 
United  States  marshals  shall  be  charged  as  hereto- 
fore and  shall  be  collected  as  far  as  possible,  and 
paid  to  the  clerl);  of  the  court  having  jurisdiction, 
and  by  him  co'Siered  into  the  Treasury  of  the 
United  States;  and  the  said  officers  shall  be  paid 
for  their  official  services,  which  in  the  case  of  dis- 
trict attorneys  shall  include  services  in  the  circuit 
court  of  appeals  of  their  respective  circuits  wher- 
ever sitting,  salaries  and  compensations  hereinafter 
provided  iind  not  otherwise.  Provided,tha.t  this  sec- 
tion shall  not  be  construed  to  require  or  authorize 
fees  to  be  charged  against  or  collected  from  the 
United  States,  except  as  provided  by  sections 
eleven  and  thirteen  of  this  Act  relating  to  field 
deputies  and  their  payments.  (29  U.  S.  Stats.  179, 
sec.  6.) 

Note.— Prior  to  .Tnly  1,  1896.  district  attorneys  and 
tnarRhals  were  each  allowed  to  retain  from  fees 
collected  a  sum  not  exceeding    six  tbousand  dollars 


931  FEE8.  §  303 

a  year.  (Rev.  Stats.,  see.  835.)  By  the  provisions 
of  the  act  wliich  went  into  effect  on  the  above 
named  date  the  district  attorneys  and  marshals  were 
required  to  turn  all  fees  into  the  hands  of  the 
clerk  to  be  covered  into  the  treasury,  and  in  lieu 
of  such  fees  and  other  compensation  the  district 
attorneys  and  marshals  w^ere  to  receive  salaries  as 
provided  by  the  act.  Certain  portions  of  the  act 
did  not  apply  to  the  southern  district  of  New  York, 
District  of  Columbia  or  Indian  Territory,  or  to  the 
Ten-itory   of   Alaska   (29   U.   S.   Stats.   179-186). 

Expenses  of  district  attorney.— An  allowance  for 
travel  fees  or  mileage  by  the  statute  to  a  district 
attorney  was  not  intended  as  compensation  for  his 
services,  but  as  a  re-imbursement  for  traveling  ex- 
penses (United  States  v.  Smith,  158  U.  S.  346).  A 
distri(?t  attorney,  whose  place  of  abode  is  at  a  dis- 
tance from  the  place  at  which  court  is  held,  is  not 
entitled  to  mileage  for  travel  in  going  to  his  home 
every  Saturday,  and  in  returning  to  the  place  of 
holding  court  every  Monday  morning,  during  the 
continuous  session  of  the  court  (United  States  v. 
Shields,  153  U.  S.  88).  Mileage  may  be  necessai*y 
and  so  properly  allowed,  though  charged  for  at- 
tendance upon  successive  days  before  the  same  com- 
missioner (United  States  v.  Colman,  46  U.  S.  App. 
133;  76  Fed.  Rep.  214).  The  district  attorney  is  al- 
lowed the  expense  of  necessary  telegraphic  com- 
munication in  regard  to  criminal  business  (United 
States  r.  Stanton,  35  U.  S.  App.  799;  70  Fed.  Rep. 
890).  The  government  is  liable  for  the  compensa- 
tion of  a  stenographer  employed  by  the  district  at- 
torney who  was  authorized  by  the  attorney-general 
to  contract  for  such  employment  (United  States  v. 
Denison,  80  Fed.  Rep.  370). 


§§  307-308  FEES.  934 

the  secretary  of  the  treasury  shall  deem  just  and 
reasonable,  upon  the  certificate  of  the  judge  be- 
fore whom  such  .cases  are  tried  and  disposed  of; 
provided,  that  the  annual  compensation  of  such 
district  attorney  shall  not  exceed  the  maximum 
amount  prescribed  by  law,  by  reason  of  such  allow- 
ance and  payment.  (Rev.  Stats,  sec.  838;  18  U. 
Stats.  210;  1  Sup.  Rev.  Stats.  264.) 

§  307.  Compensation  retained  by  a  clerk. — ISTo 
clerk  of  a  district  court,  or  clerk  of  a  circuit  court, 
shall  be  allowed  by  the  attorney-general,  except 
as  provided  in  the  next  section,  and  in  section 
eight  hundred  and  forty-two,  to  retain  of  the  fees 
and  emoluments  of  his  office,  or,  in  case  both  of 
the  said  clerkships  are  held  by  the  same  person, 
of  the  fees  and  emoluments  of  tlie  said  offices,  re- 
spectively, for  his  personal  compensation,  over  and 
above  his  necessary  office  expenses,  including  nec- 
essary clerk  hire,  to  be  audited  and  allowed  by  the 
proper  accounting  officers  of  the  treasury,  a  sum 
exceeding  three  thousand  five  hundred  dollars  a 
year  for  any  such  district  clerk  or  for  any  such  cir- 
cuit clerk,  or  exeeeding  that  rate  for  any  time  less 
than  a  year.    (Rev.  Stats,  sec.  839.) 

Note.— Where  both  offices  are  held  by  the  same 
person,  he  is  entitled  to  tlie  distinct  compensation 
provided  for  each.  (United  States  v.  Bassett,  2 
Story,  380;  Rep.  Cas.  No.  14539;  see  In  re  United 
States  V.  Cigars,  2  Fed.  Rei>.  495.) 

§  308.  Clerks  in  California.  Oregon  and  Ne- 
vada.— The  clerks  of   the  several  circuit  and  dis- 


935  FEES.  §  309 

trict  courts  in  California,  Oregon  and  Nevada  shall 
be  entitled  to  charge  and  receive  double  the  fees 
hereinbefore  allowed  to  clerks,  and  shall  be  al- 
lowed, respectively,  by  the  attornej^-general,  to  re- 
tain the  fees  so  received  by  them,  for  their  per- 
sonal compensation,  over  and  above  the  necessary 
expenses  of  their  offices,  including  the  salaries 
of  deputy  clerks  and  necessary  clerk  hire,  to 
be  audited  by  the  proper  accounting  officers 
of  the  treasury  department,  any  sum  not  ex- 
ceeding seven  thousand  dollars  a  year,  nor  ex- 
ceeding that  rate  for  any  time  less  than  a  year; 
provided,  that  whenever  in  either  of  the  said  dis- 
tricts, the  same  person  holds  the  office  of  clerk 
of  both  the  circuit  and  district  courts,  he  shall  be 
allowed  by  the  attorney-general  to  retain  for  his 
personal  compensation,  as  foresaid,  only  such  sum 
as  herein  allowed  to  be  retained  by  a  person  hold- 
ing the  office  of  clerk  of  only  one  of  the  said  courts. 
(Eev.  Stats,  sec.  840.) 

§  309.  Compensation  of  marshals. — Prior  to 
July  1,  189G,  the  several  marshals  were  allowed  to 
retain  from  the  fees  collected  by  them  an  amount 
not  exceeding  six  thousand  dollars.  By  an  Act 
which  went  into  effect  on  that  date  the  marshals 
were  given  regular  salaries,  and  the  fees  thereafter 
collected  were  to  be  covered  into  the  treasury.  (29 
U.  S.  Stats.  179-186.) 

Note. — The  attorney-general  can  do  nothing  but 
reduce  the  rate  allowed,  whenever  the  marshal's  re- 
turn shows  such  "rate  to  be  unreasonable."  (Phil- 
lips V.  U.  S.,  11  Ct.  of  CI.  570;  see  preceding  sec- 
tion.) 


§§  310-312  FEES.  936 

§  310.  Additional  compensation  in  prize 
causes. — Clerks  [and  inarshals]  may  be  allowed  to 
retain,  for  all  official  services  in  prize  causes,  an 
additional  compensation  not  exceeding  in  amount 
one-half  of  the  maximum  compensation  allowed 
to  them,  respectively,  by  the  three  preceding  sec- 
tions.   (Eev.  Stats,  sec.  843.) 

See  preceding  section. 

Note.— Clerks  and  marehals  entitled  to  additional 
compensation  in  prize  causes.  (United  States  v. 
Avtrill,  130  U.  S.  335.) 

§311.  Mileage. — Only  actual  traveling  ex-- 
penses  shall  be  allowed  to  any  person  holding  em- 
ployment or  appointment  under  the  United  States, 
and  all  allowances  for  mileages  and  transportation 
in  excess  of  the  amount  actually  paid  are  hereby 
declared  illegal;,  and  no  credit  shall  be  allowed  to 
any  of  the  disbursing  officers  of  the  United  States 
for  payment  or  allowances  in  violation  of  this  pro- 
vision. (June  16,  1874.  18  U.  S.  Stats.  72;  1 
Sup.  Eev.  Stats.  37.  See  Eev.  Stats,  sees.  829, 
830.) 

§  312.  Mileage,  attorneys,  marshals  and 
clerks. — From  and  after  the  first  day  of  January, 
eighteen  hundred  and  seventy-five,  no  such  officer 
or  person  shall  become  entitled  to  any  allowance 
for  mileage  or  travel,  not  actually  and  necessarily 
performed  under  the  provisions  of  existing  law. 
(Sec.  827-839,  U.  S.  Stats.  334;  1  Sup.  Rev.  Stats. 
147.) 

Note. — Only  one  charg:e  for  milonse  is  allowable 
for  the  service  of  several  writs  on  hand  at  the  same 


937  FEES.  §§313-315 

time,  in  the  same  direction.     (15  Opin,  Att.-Gen.  108; 
see  16  Opin.  Att.-Gen.  1G5.) 

§  313.  Mileage,  jurors  and  witnesses. — Jurors 
and  witnesses  in  the  district  and  circuit  courts  of 
the  United  States  in  and  for  the  State  of  Colorado 
shall  be  entitled  to  receive  fifteen  cents  for  each 
mile  actually  traveled  in  coming  to  or  returning 
from  said  courts.  (Approved,  June  16,  1880.  See 
Eev.  Stats,  sees.  848-852.) 

§  314.  Allowances  for  each  year  made  from 
the  fees  thereof. — The  allowances  for  personal 
compensation  of  district  attorneys,  clerks,  and  mar- 
shals, for  each  calendar  year,  shall  be  made  from 
the  fees  and  emoluments  of  that  year,  and  not 
otherwise.     (Eev.  Stats,  sec.  843.) 

Note.— Since  July  1,  1806,  the  several  marshals  and 
district  attorneys,  excepting  the  Qi strict  attorneys  in 
the  southern  district  of  New  York  and  certain  terri- 
tories, have  been  paid  annual  salaries.  (29  U.  S. 
Stats.  179-186.) 

§  315.     Payment  of  surplus  fees  into  treasury. 

• — Every  district  attorney,  clerk,  and  marshal  shall, 
at  the  time  of  making  his  half-yearly  return  to 
the  attorney-general,  pay  into  the  treasury,  or  de- 
posit to  the  credit  of  the  treasury,  as  he  may  be 
directed  by  the  attorney-general,  any  surplus  of 
the  fees  and  emoluments  of  his  office,  which  said 
return  shows  to  exist  over  and  above  the  compen- 
sation and  allowance  authorized  by  law  to  be  re- 
tained by  him.     (Eev.  Stats,  sec.  844.) 

Fed.  Pkoc— 79, 


§§316-317  FEES.  938 

Note.— See  the  act  of  1896  (29  U.  S.  Stats.,  179-18J) 
which  provides  that  all  the  district  attorneys  of  the 
United  States,  except  in  the  southern  district  of  New 
York  and  the  district  of  Columbia,  Alaska,  and 
Indian  Territoiy,  and  all  the  marshals  except  in 
Indian  Territoi'y  and  Alaska,  shall  turn  their  fees 
collected  to  the  clerk,  to  be  by  him  covered  into  the 
treasury  of  the  United  States.  The  act  provides  for 
salaries  for  the  several  district  attorneys  and  mar- 
shals. The  department  will  see  that  no  more  is  re- 
tained by  the  officer  than  the  sum  given  him  by  law. 
(The  Anna,  Blatchf.  Prize,  337;  Fed.  Cas.  No.  402.) 
The  costs  must  be  taxed  according  to  law.  (The 
Anna,  Blatchf.  Prize,  337;  Fed.  Cas.  No.  402.) 
This  section  is  not  a  "revenue  law"  within  the  mean- 
ing of  section  699.  subdivision  2.  (United  States  v. 
Hill,  123  U.  S.  681.) 

§  316.  Auditing  of  accounts  of  district  attor- 
ney.— In  every  case  where  the  return  of  a  district 
attorney,  clerk  or  marshal  shows  that  a  surplus 
may  exist,  the  attorney-general  shall  cause  such 
return  to  be  carefully  examined,  and  the  accounts 
of  disbursements  to  be  regularly  audited  by  the 
proper  officer  of  his  department,  and  an  account  to 
be  opened  with  such  officer  in  proper  books  to  be 
provided  for  that  purpose.    (Kev,  Stats,  sec.  845.) 

§  317.     Attorney   in   District   of     Columbia. — 

That  the  emolument  returns  of  the  attorney  of  the 
United  States  for  the  District  of  Columbia  shall 
be  returned  to  the  attorney-general,  and  the  ac- 
counts of  the  said  attorney  shall  be  rendered,  au- 
dited, and  paid  in  the  same  manner  as  accounts 
of  all  other  district  attorneys  are  rendered,  audited 


939  FEES.  §  318 

and  paid.  (Approved,  DecemlDer  14, 1877;  20  U.  S. 
Stats.  7;  Sup.  Eev.  Stats.  303.  See  Eev.  Stats, 
sees.  833,  834,  844,  846.) 

§  318.  Accounts  to  he  certified  to  by  district 
judge. — The  accounts  of  district  attorneys,  clerks, 
marshals,  and  commissioners  of  circuit  courts  shall 
be  examined  and  certified  by  the  district  judge 
of  the  district  for  which  they  are  appointed,  be- 
fore they  are  presented  to  the  accounting  officers 
of  the  treasury  department  for  settlement.  They 
shall  then  be  subject  to  revision  upon  their  merits 
by  said  accounting  officers,  as  in  case  of  other  pub- 
lic accounts;  provided,  that  no  accounts  of  fees  or 
costs  paid  to  any  witness  or  Juror,  upon  the  order 
of  any  judge  or  commissioner,  shall  be  so  re-ex- 
amined as  to  charge  any  marshal  for  an  erroneous 
taxation  of  such  fees  or  costs.  That  where  the 
ministerial  officers  of  the  United  States  have  or 
shall  incur  extraordinary  expense  in  executing  the 
laws  thereof,  the  payment  of  w^hich  is  not  speci- 
fically provided  for,  the  President  of  the  United 
States  is  authorized  to  allow  the  payment  thereof 
under  the  special  taxation  of  the  district  or  circuit 
court  of  the  district  in  which  the  said  services  have 
been  or  shall  be  rendered,  to  be  paid  from  the  ap- 
propriation for  defraying  the  expenses  of  the  judi- 
ciary. (Eev.  Stats.  sec.''846;  18  U.  S.  Stats.  318; 
1  Sup.  Eev.  Stats.  138.) 

Note.— The  accounts  of  the  marshals  and  district 
attorneys  and  assistants  may  be  submitted  to  and 
examined  by  either  the  circuit  or  district  judge.  (29 
U.  S.  Stats.  183.) 


§  319  FEES.  940 

A    district    judge    has    the    power    to    take    the 
oath  of    the  clerk  to    his    return  of    fees  of    office 
(United  States  v.  Ambrose,  2  Fed.  Rep.  556);  and  the 
certificate  of  the  judge  is  only  evidence  of  the  claim 
or  right  to  he  given  to  the  treasury.     (United  States 
V.   Ingersoll,   Crabbe,   135;   Fed.   Cas.   No.   15440.)     It 
is  merely  prima  facie  evidence  of  its  correctness,  and 
any  item  may  be  rejected  by  the  accounting  officers. 
(United  States  v.  Smith,  1  Wood  &  M.  184;  Fed.  Cas. 
No.  16346.)     If  the  items  have  been  passed  upon  in 
judgments  as  to  bills  of  costs,  the  certificate  of  the 
judge  is  conclusive.     (United  States  v.  Smith,  1  Wood 
&  M.  184;  Fed.  Cas.  No.  16346.)    Whether  the  mar- 
shal's fees  are  fixed  by  rule  or  depend  on  circum- 
stances, they  must  be  certified  to.     (The  Antelope,  12 
Wheat.  546.)     A  refusal  by  the  court  to  act  upon  a 
claim  under  this  section  is  not  required  to  authorize 
a  pre-sentation  of  the  claim  to  the  treasui*y  depai"t- 
ment  before  bi'inging  suit  in  the    court  of    claims. 
(United  States  v.  Knox,  128  U.  S.  230.)     This  section 
declares  that  clerks,  marshals  and  commissioners  of 
circuit    courts   shall   be   accounting    otticei"s   of    the 
treasury  department  and  shall  be  subject  to  revision 
upon  their  merits  by  said  accounting  officei'S,  as  in 
case  of  other  public  accounts.    The  claimant  has  a 
remedy  in  the  court  of  claims  vs^ithout  first  resoi*ting 
to  a  writ  of   mandamus   against  the  circuit    court. 
(United  States  v.  Knox,  128  U.  S.  230.)     It  is  not  a 
defense  to  an  action  by  a  clerk  of  the  Federal  court 
against  the  government,  to  recover  his  fees,  that  his 
claim  has  not  been  audited  by  the  officials  of  the  ex- 
ecutive department,  or  that  it  has  not  been  allowed  by 
such  officials.     (U.  S.  v.  Fitch,  37  U.  S.  App.  103;  70 
Fed.  Rep.  578.) 

§  319.     Accounts  for  costs  of  clerks,  etc. — That 

before  any  bill  of  cost  .shall  be  taxed  by  any  judge 


y41  FEES.  §  319 

or  other  officer,  or  any  account  payable  out  of  the 
money  of  the  United  States  shall  be  allowed  by 
any  olhcer  of  the  treasury,  in  favor  of  clerks,  mar- 
shals, or  district  attorneys,  the  party  claiming 
such  account  shall  render  the  same,  with  the 
vouchers  and  items  thereof,  to  a  United  States  cir- 
cuit or  district  court,  and,  in  presence  of  the  dis- 
trict attorney  or  his  sworn  assistant,  whose  pres- 
ence shall  be  noted  on  the  record,  prove  in  open 
court,^to  the  satisfaction  of  the  court  by  his  own 
oath  or  that  of  other  persons  having  knowledge  of 
the  fact,  to  be  attached  to  such  account,  that  the 
services  therein  charged  have  been  actually  and 
necessarily  performed  as  therein  stated;  and  that 
the  disbursements  charged  have  been  fully  paid  in 
lawful  money;  and  the  court  shall  thereupon  cause 
to  be  entered  of  record  an  order  approving  or  dis- 
approving the  account,  as  may  be  according  to 
law,  and  just.  United  States  commissioners  shall 
forward  their  accounts,  duly  verified  by  oath,  to 
the  district  attorneys  of  their  respective  districts, 
by  whom  they  shall  be  submitted  for  approval  in 
open  court,  and  the  court  shall  pass  upon  the  same 
in  the  manner  aforesaid.  Accounts  and  vouchers 
of  clerks,  marshals,  and  district  attorneys  shall  be 
made  in  duplicate,  to  be  marked  respectively 
"original"  and  "duplicate."  And  it  shall  be  the 
duty  of  the  clerk  to  forward  the  original  accounts 
and  vouchers  of  the  officers  above  specified,  when 
approved,  to  the  proper  accounting  officers  of  the 
treasury,  and  to  retain  in  his  office  the  duplicates, 
where  they  shall  be  open  to  public  inspection  at  all 


§  320  FEES.  942 

times.  Nothing  contained  in  this  act  shall  be 
deemed  in  any  wise  to  diminish  or  affect  the  right 
of  revision  of  the  accounts  to  which  this  act  applies 
by  the  accounting  officers  of  the  treasur)',  as  exer- 
cised under  the  laws  now  in  force.  (See  sees.  824, 
838;  18  U.  S.  Stats.  333.    1  Sup.  Eev.  Stats.  145.) 

§  320.     Clerk  failing  to  report  to  be  removed. — 

That  if  any  clerk  of  any  district  or  circuit  court 
of  the  United  States  shall  willfully  refuse  or  neg- 
lect to  make  any  report,  certificate,  statement  or 
other  document  required  by  law  to  be  by  him 
made,  or  shall  willfully  refuse  or  neglect  to  for- 
ward any  such  report,  certificate,  statement  or 
document  to  the  department,  officer,  or  person  to 
whom,  by  law,  the  same  should  be  forwarded,  the 
President  of  the  United  States  is  empowered,  and 
it  is  hereby  made  his  duty,  in  every  such  case, 
to  remove  such  clerk  so  offending  from  office,  by  an 
order  in  writing  for  that  purpose.  And  upon  the 
presentation  of  such  order,  or  a  copy  thereof,  au- 
thenticated by  the  attorney-general  of  the  United 
States,  to  the  judge  of  the  court  whereof  such  of- 
fender is  clerk,  such  clerk  shall  thereupon  be 
deemed  to  be  out  of  office,  and  shall  not  exercise 
the  functions  thereof.  And  such  district  judge,  in 
the  case  of  the  clerk  of  a  district  court,  shall  ap- 
point a  successor;  and  in  the  case  of  the  clerk  of  a 
circuit  court,  the  circuit  judge  shall  appoint  a  suc- 
cessor. And  such  person  so  removed  shall  not  be 
eligible  to  any  appointment  as  clerk  or  deputy 
clerk  for  the  period  of  two  years  next  after  such 


943  FEES.  §§  321-333 

removal.     [See  sees.  797,  798.]     (18  U.  S.  Stats. 
333;  1  Sup.  Eev.  Stats.  146.) 

§  321.  Additional  punishment. — That  if  any 
clerk  mentioned  in  the  preceding  section  shall  will- 
fully refuse  or  neglect  to  make  or  to  forward  any 
such  report,  certificate,  statement,  or  document 
therein  mentioned,  he  shall  be  deemed  guilty  of 
a  misdemeanor,  and  shall  be  punished  by  a  fine 
not  exceeding  one  thousand  dollars,  or  by  impris- 
onment not  exceeding  one  year,  in  the  discretion 
of  the  court;  but  a  conviction  under  this  section 
shall  not  be  necessary  as  a  condition  precedent  to 
the  removal  from  office  provided  for  in  this  act. 
[See  sec.  797.]  (18  U.  S.  Stats.  333;  1  Sup.  Eev. 
Stats.  147.) 

§  322.  Fees  of  "United  States  commissioners. — 
That  each  United  States  commissioner  shall  be  en- 
titled to  the  following  named  fees,  and  none  other: 
drawing  a  complaint,  with  oath  and  jurat  to  same, 
fifty  cents;  copy  of  complaint,  with  certificate 
to  same,  thirty  cents;  issuing  warrant  of  arrest, 
seventy-five  cents;  issuing  a  commitment  an,d 
making  copy  of  same,  one  dollar;  entering  a  return, 
fifteen  cents;  issuing  subpoena  oi  subpoenas  in 
any  one  case,  with  five  cents  for  each  necessary  wit- 
ness in  addition  to  the  first,  twenty-five  cents; 
drawing  a  bond  of  defendant  and  sureties,  taking 
acknowledgment  of  same  and  justification  of  sure- 
ties, seventy-five  cents;  for  administering  an  oath 
(except  to  vritness  as  to  attendance  and  travel) 
ten  cents;  recognizance  of  all  witnesses  in  a  case. 


§  322  FEES.  944 

wlieu  the  defendant  or  dei'endants  are  held  for 
court,  fifty  tents;  transcripts  of  proceedings;,  wiien 
required  by  order  of  court  and  transmission  of 
origiuai  papers  to  court,  sixty  cents;  copy  of  war- 
rant of  arrest,  with  certificate  to  same,  when  de- 
fendant is  held  for  court,  and  the  original  papers 
are  not  sent  to  court,  forty  cents;  order  in  dupli- 
cate to  pay  all  witnesses  in  a  case:  ¥ot  first  wit- 
ness, thirty  cents,  and  for  each  additional  witness 
five  cents,  and  for  oath  to  each  witness  as  to  at- 
tendance and  travel,  five  cents;  for  hearing  and 
deciding  on  criminal  charges  and  reducing  the 
testimony  to  writing  when  required  by  law  or  or- 
der of  court,  five  dollars  a  day  for  the  time  neces- 
sarily employed:  provided,  that  not  more  than  one 
per  diem  shall  be  allowed  in  a  case,  unless  the  ac- 
count shall  sho.w  that  the  hearing  could  not  be 
completed  in  one  day,  when  one  additional  per 
diem  may  be  especially  approved  and  allowed  by 
the  court;  provided,  further,  that  not  more  than 
one  per  diem  shall  be  allowed  for  any  one  day; 
provided,  further,  that  no  per  diem  shall  be  al- 
lowed for  taking  a  bond  or  recognizance  and  pass- 
ing on  the  sufficiency  of  the  bond  or  recognizance 
and  the  sureties  thereon  when  the  bond  or  recog- 
nizance was  taken  after  the  defendant  had  been 
committed  to  prison  upon  a  final  commitment,  or 
has  given  bond  or  been  recognized  for  his  ap- 
pearance at  court,  or  when  the  defendant  has  been 
arrested  on  a  capias  or  bench  warrant,  or  was  in 
custody  under  any  process  or  order  of  a  court  of 
record.     For  the  examination  and  certificate  in 


945  FEES.  §  322 

cases  of  application  for  discharge  of  poor  convicts 
imprisoned  for  nonpayment  of  fine  or  fine  and 
costs,  and  all  services  connected  therewith,  three 
dollars;  for  attending  to  a  reference  in  a  litigated 
matter,  in  a  civil  cause  at  law,  in  equity,  or  in  ad- 
miralty, in  pursuance  of  an  order  of  the  court, 
three  dollars  a  day;  for  taking  and  certifying  depo- 
sitions to  file  in  civil  cases,  ten  cents  for  each 
folio;  for  each  copy  of  the  same  furnished  to  a 
party  on  request,  ten  cents  for  each  folio;  for  is- 
suing any  warrant  under  the  tenth  article  of  the 
treaty  of  August  ninth,  eighteen  hundred  and 
forty-two,  between  the  United  States  and  the 
Queen  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  against  any  parties  charged  with  any 
crime  or  offense  set  forth  in  said  article,  two  dol- 
lars; for  issuing  any  warrant  under  the  provision 
of  the  convention  for  the  surrender  of  criminals 
between  the  United  States  and  the  King  of  the 
French,  concluded  at  Washington,  November  ninth, 
eighteen  hundred  and  forty-three,  two  dollars;  for 
hearing  and  deciding  upon  the  case  of  any  person 
charged  with  any  crime  or  offense,  and  arrested 
under  the  provisions  of  said  treaty  or  of  said  con- 
vention, five  dollars  a  day  for  the  time  necessar- 
ily employed.     (39  U.  S.  Stats.  184.) 

TTnited  States  commissioners. — By  an  act  passed 
May  28,  1896  (29  U.  S.  Stats.  184),  the  office  of  cir- 
cuit court  commissioner  was  abolished,  and  instead 
the  office  of  district  court  commissioner  was  created. 
A  new  scliedule  of  fees  to  be  charged  by  the  dis- 
trict court  commissioner  as  given  in  the  above  sec- 
tion was  established  by  the  act. 


§  323  FEES.  946 

Commissioner's  fees. — It  is  important  that  a  com- 
missiouer  stiould  write  out  ttie  testimony  taken  be- 
fore liim  in  preliminary  examinations  and  he  is  en- 
titled to  fees  therefor  as  an  examining  magistrate. 
(United  States  v.  Dundy,  40  U.  S.  App.  379;  76  Fed. 
Eep.  355.)  Commissioners  are  not  allowed  double 
fees  in  Wyoming.  (Churchill  v.  United  States,  32 
U.  S.  App.  196;  67  Fed.  Rep.  529.)  The  compensa- 
tion of  a  commissioner  is  limited  to  those  specific 
services  for  which  Congress  has  provided  compensa- 
tion. (United  States  v.  Patterson,  150  U.  S.  65.) 
Commissioners  are  subject,  so  far  as  relates  to  their 
administrative  action,  to  the  orders  and  directions 
of  the  court  appointing  them.  (United  States  v. 
AUred,  155  U.  S.  591.)  A  lack  of  good  faith  on  the 
part  of  a  commissioner  will  bar  his  claim  against 
the  United  States  for  compensation.  (Southworth 
V.  United  States,  161  U.  S.  639.) 

§  323.  Witnesses'  fees. — For  each  day's  attend- 
ance in  court,  or  before  any  officer,  pursuant  to 
law,  one  dollar  and  fifty  cents,  and  five  cents  a 
mile  for  going  from  his  place  of  residence  to  the 
place  of  trial  or  hearing,  and  five  cents  a  mile  for 
returning.  When  a  witness  is  subpoenaed  in  more 
than  one  cause  between  the  same  parties,  at  the 
same  court,  only  one  travel  fee  and  one  per  diem 
compensation  shall  be  allowed  for  attendance. 
Both  shall  be  taxed  in  the  case  first  disposed  of, 
after  which  the  per  diem  attendance  fee  alone 
shall  be  taxed  in  the  other  cases  in  the  order  in 
which  they  are  disposed  of.  "When  a  M'itness  is 
detained  in  prison  for  want  of  security  for  his  ap- 
pearance, he  shall  be  entitled,  in  addition  to  his 
su])sistence,  to  a  compensation  of  one  dollar  a  day. 
(Eev.  Stats,  sec.  848.     See  sees.  879-881.) 


947  FEES.  §  323 

Witness  fees. — A  witness  subpoenaed  at  the  place 
of  trial  on  the  day  of  trial  is  not  entitled  to  a  travel 
fee  (The  Sunnyside,  5  Ben.  162;  Fed.  Cas.  No.  13619); 
and  if  he  has  the  means  to  pay  traveling  expenses, 
it  is  not  necessary  to  tender  his  fees.  (United  States 
V.  Durling,  4  Bi^ss.  509;  Fed.  Cas.  No.  15010.)  Fees 
for  attendance  may  be  taxed  in  civU  as  well  as  crim- 
inal cases  (Sebring  v.  Ward,  4  Wash.  C.  C.  54G;  Fed. 
Cas.  No.  12598);  and  although  he  was  summoned  to 
serve  as  a  juror  and  so  served  (Edwards  v.  Bond,  5 
McLean,  500;  Fed.  Cas.  No.  4294);  and  where  his 
attendance  and  examination  were  procured  in  good 
faith,  he  is  entitled  to  his  fees  although  he  was  not 
served  with  a  subpoena.  (Pinson  v.  Atchison  T.  & 
S.  Fe  R.  Co.,  54  Fed.  Rep.  464;  Simpkins  v.  Atchison 
T.  &  S.  Fe  R.  Co.,  61  Fed.  Rep.  999;  Sloss  Iron  & 
Steel  Oo.  V.  South  Carolina  &  G.  R.  Co.,  75  Fed.  Rep. 
106;  but  see  Lilienthal  v.  Southern  Cal.  Ry.  Co.,  61 
Fed.  Rep.  622;  United  States  v.  Williams,  1  Cranch 
C.  C.  178;  Fed.  Cas.  No.  16709;  Power  v.  Semmes,  1 
Cranch  C.  C.  247;  Fed.  Cas.  No.  11360;  Cummings  vt 
The  .\rkon  Co.,  6  Blatchf.  500;  Fed.  Oas.  No.  3473; 
Dennis  v.  Eddy,  12  Blatchf.  195;  Fed.  Cas.  No.  8793; 
Anderson  v.  Moe.  1  Abb.  U.  S.  299;  Fed.  Cas.  No. 
359;  Prouty  v.  Draper,  2  Story,  199;  Fed.  Cas.  No. 
11447.  But  see  Sawyer  v.  Aultman  Co.,  5  Biss.  165; 
Fed.  Cas.  No.  12897;  Woodruif  v.  Barney,  1  Bond, 
528;  Fed.  Cas.  No.  17986.)  Where  persons  are  sub- 
poenaed as  witnesses,  but  are  not  introduced  to  tes- 
tify, the  presumption  is  that  they  were  unneces- 
sarily brought  to  court,  and  their  fees  are  not  taxable 
against  the  opposite  paily.  (Simpkins  v.  Atchison 
T.  &  S.  Fe  R.  Co.,  61  Fed.  Rep.  999.)  The  United 
States  is  not  required  to  tender  witness  fees  in  ad- 
vance. (In  re  Storror,  63  Fed.  Rep.  564.)  The  com- 
pensation of  experts  called  by  a  party  in  his  own 
behalf  cannot    be  taxed    against    the  losing  party. 


§  323  FEES.  948 

(The  William  Branfoot,  8  U.   S.   App.   129;  52  Fed. 
Eep.  390.) 

Witnesses  from  a  distance. — The  attendance  of 
"Witnesses  coming  from  more  than  one  hundred  miles 
distance  is  voluntary,  even  where  served  with  a  sub- 
poena (Spaulding  v.  Tucker,  2  Sawy.  50;  Fed.  Cas. 
No.  13221);  and  fees  may  be  taxed  (Dreskill  v.  Par- 
ish, 5  McLean,  241;  Fed.  Cas.  No.  4076),  and  his 
traveling  fees  may  be  taxed  for  a  distance  of 
one  hundred  miles  and  no  more  (Beckwith  v.  Easton, 
4  Ben.  357;  Fed.  Cas.  No.  1212;  The  Leo,  5  Ben.  486; 
Fed.  Cas.  No.  8252;  Anonymous,  5  Blatchf.  134;  Fed. 
Cas.  No.  432;  Russell  v.  Ashley,  Hemp.  546;  Fed.  Cas. 
No.  12150;  Pinson  v.  Atchison  T.  &  S.  Fe  K.  Co., 
54  Fed.  Rep.  464;  Sloss  Iron  &  Steel  Go.  v.  South  Car. 
&  G.  R.  Go.  75  Fed.  Rep.  106;  but  see  Hunter  v. 
Russell,  59  Fed.  Rep.  964);  and  if  he  actually  attends 
his  fees  may  be  taxed,  although  he  is  not  examined 
(Hathaway  v.  Roach,  2  Wood  &  M.  63;  Fed.  Cas.  No. 
(^213);  and  althougli  the  subpoena  was  served  on  him 
by  a  private  person.  (Power  v.  Semmes,  1  Cranch 
C.  C.  247;  Fed.  Cas.  No.  11360;  Gordon  v.  Scott,  2 
Bank  Reg.  86;  Fed.  Gas.  No.  5620.)  His  fees  are 
taxable,  although  his  deposition  was  taken  (Ander- 
son V.  Moe,  1  Abb.  U.  S.  299;  Fed.  Cas.  No.  359;  Beck- 
with V.  Easton,  4  Ben.  357;  Fed.  Cas.  No.  1212);  and 
in  case  of  postponement  on  account  of  sickness  of 
counsel,  the  fees  may  be  taxed  during  the  postpone- 
ment. (Whipple  V.  Cumberland  Cotton  Co.,  3  Story, 
84;  P^ed.  Cas.  No.  17515.)  Postponement  at  the  re- 
quest of  a  party  where  witnesses  of  his  advereary 
were  present  will  entitle  the  latter  to  costs  of  the 
delay.  (Hunter  v.  Russell,  59  Fed.  Rep.  964.)  The 
fees  may  be  taxed  during  tlieir  actual  attendance, 
after  their  examination  is  closed  and  while  the  case 
is  under  argument.  (Whipple  v.  Cumberland  Cotton 
Co.,  3  Story,  84;  Fed.  Cas.  No.  17515.)     If  the  case  is 


949  FEES.  :    323 

postponed  by  agreement  fees  for  double  travel  may 
be  taxed,  if  governed  by  the  agreement.  (Hance  v. 
McCormick,  1  Cranch  C.  C.  522;  Fed.  Cas.  No.  6009; 
Hathaway  v.  Eoach,  2  Wood  &  M.  63;  Fed.  Cas.  No. 
6213.)  When  summoned  in  several  cases  a  witness 
is  allowed  a  per  diem  and  mileage  only  in  one  case, 
to  be  distributed  and  charged  equally  among  the 
various  cases  (Parker  v.  Oartzler.  5  McLean,  4;  Fed. 
Cas.  No.  10730);  but  he  has  a  right  to  fees  in  each 
suit  where  the  parties  are  different.  (Parker  v. 
Bigler,  1  Fish.  Pat.  Cas.  28.5;  Fed.  Cas.  No.  1072a) 
A  party  called  and  examined  as  a  witness  in  his  own 
behalf  is  not  entitled  to  fees  and  traveling  expenses. 
(Nichols  V.  Brunswick,  3  Cliff.  88;  Fed.  Cas.  No. 
10230;  Roundtree  v.  Rembert,  71  Fee!.  Rep.  2.>.5.)  A 
party  is  not  entitled  to  costs  of  more  than  three  wit- 
nesses to  any  one  fact.  (Bussard  v.  Catalino,  2 
Cranch  C.  C.  421;  Fed.  Cas.  No.  2228.)  Witnesses 
attending  Federal  courts  are  not  entitled  to  the  per 
diem  fee  of  $1.50  in  addition  to  their  mileage  for 
time  spent  in  coming  to  and  returning  from  the  place 
of  trial,  or  for  time  occupied  previous  to  the  day 
of  ti'ial  in  conference  with  counsel  or  proctor.  (The 
Michigan.  52  Fed.  Rep.  509;  Carter  v.  Sweet,  84 
Fed.  Rep.  17.) 

Attendance  before  commissioners. — "Pursuant  to 
law"  applies  to  attendance  of  witnesses  before  com- 
missioners only  (Cummings  v.  Akron  Co.,  6  Blatchf. 
509;  Fed.  Cas.  3473);  and  if  parties  agree  that  the 
testimony  of  various  witnesses  shall  be  taken  before 
a  commissioner  in  another  State,  the  fees  may  be 
allowed,  although  they  attended  voluntarily.  (Spaul- 
ding  V.  Tucker,  2  Sawy.  50;  Fed.  Cas.  No.  13221.) 
No  per  diem  allowance  can  be  taxed  for  attendance 
before  a  master  where  the  testimony  is  afterward 
abandoned,  stricken  out  or  rejected.  (Troy  etc.  Fac- 
tory V.  Corning,  7  Blatchf.  16;  Fed.  Cas.  No.  14197.) 
Fed.  Proc— 80. 


^§  324-326  FEES.  950 

Detention  of  witness.— If  a  witness  is  committed 
for  want  of  recognizance,  he  is  entitled  to  fees  for 
ttie  time  he  is  detained.  (In  re  Higginson,  1  Cranch 
C.  O.  73;  Fed.  Cas.  No.  6471.) 

§  324.     No  officer  of  court  to  have  witness  fees. 

— No  oJB&cer  of  the  United  States  courts,  in  any- 
State  or  Territory,  or  in  the  District  of  Columbia, 
sliall  be  entitled  to  witness  fees  for  attending  be- 
fore any  court  or  commissioner  where  he  is  of- 
ficiating.    (Eev.  Stats,  sec.  849.) 

§  325.  Expenses  of  clerks  as  witnesses. — When 
any  clerk  or  other  officer  of  the  United  States  is 
sent  away  from  his  place  of  business  as  a  witness 
for  the  government,  his  necessary  expenses,  stated 
in  items  and  sworn  to,  in  going,  returning  and  at- 
tendance on  the  cpurt,  shall  be  audited  and  paid; 
i)ut  no  mileage,  or  other  compensation  in  addition 
to  his  salary,  shall  in  any  case  be  allowed.  (Kev. 
Stats,  sec.  850.) 

§  326.     Seamen  sent  home  as  witnesses.— There 

shall  be  paid  to  eacli  seaman  or  other  person  who 
is  sent  to  the  United  States  from  any  foreign  port, 
station,  sea  or  ocean,-  by  any  United  States  min- 
ister, charge  d'affaires,  consul,  captain,  or  com- 
mander, to  give  testimony  in  any  criminal  case 
depending  in  any  court  of  the  United  States,  such 
compensation,  exclusive  of  subsistence  and  trans- 
portation, as  such  court  may  adjudge  to  be  proper, 
not  exceeding  one  dollar  for  each  day  necessar- 
ily employed  in  such  voyage,  and  in  arriving  at 
the  place  of  examination  or  trial.     In  fixing  such 


951  FEES.  §§  327-328 

compensation,  the  court  shall  take  into  considera- 
tion the  condition  of  said  seaman  or  witness,  and 
whether  his  voyage  has  been  broken  up  to  his  in- 
Jury  by  his  being  sent  to  the  United  States. 

When  such  seaman  or  person  is  transported  in 
an  armed  vessel  of  the  United  States,  no  charge 
for  subsistence  or  transportation  shall  be  allowed. 
When  he  is  transported  in  any  other  vessel,  the 
compensation  for  his  transportation  and  subsis- 
tence, not  exceeding  in  any  case  fifty  cents  a  day, 
may  be  fixed  by  the  court,  and  shall  be  paid  to  the 
captain  of  said  vessel  accordingly.  (Eev.  Stats,  sec. 
851.) 

§  327.     Fees  of   grand  and   petit   jurors. — For 

actual  attendance  at  any  court  or  courts,  and  for 
the  time  necessarily  occupied  in  going  to  and  re- 
turning from  the  same,  three  dollars  a  day  dur- 
ing such  attendance.  For  the  distance  necessarily 
traveled  from  their  residence  in  going  to  and  re- 
turning from  said  court  by  the  shortest  practicable 
route,  five  cents  a  mile.  (Eev.  Stats,  sec.  852;  21 
U.  S.  Stats.  43;  1  Sup.  Eev.  Stats.  497.) 

Note. — Where  a  person  is  summoned  as  a  juror, 
and  at  the  same  term  subpoenaed  by  the  United 
States  as  a  witness,  he  is  entitled  to  compensation 
for  each  service  (Edwards  v.  Bond,  5  McLean.  ?,00; 
Fed.  Cas.  No.  4294);  and  a  juror  fi-om  a  distance  may 
be  allowed  per  diem  for  days  durin.e  which  the  panel 
stands  adjourned.  (Parker  v.  Kempton,  1  Wall.  Jr. 
344;  Fed.  Cas.  No.  10741.) 

§  328.  Mileage  in  Pacific  States. — Jurors  and 
witnesses  in  the  United  States  courts  in  the  States 


§  329  FEES.  952 

of  Wyoming,  Montana,  Washington,  Oregon,  Cali- 
fornia, Nevada,  Idaho,  and  Colorado,  and  in  the 
Territories  of  New  Mexico,  Arizona  and  Utah, 
shall  he  entitled  to  and  receive  fifteen  cents  for 
each. mile  necessarily  traveled  over  any  stage  line 
or  by  private  conveyance,  and  five  cents  for  each 
mile  over  any  railway  in  going  to'  and  returning 
from  said  courts;  provided,  that  no  constructive 
or  double  mileage  fees  shall  be  allowed  by  reason 
of  any  person  being  summoned  both  as  witness 
and  juror,  or  as  witness  in  two  or  more  cases  pend- 
ing in  the  same  court  and  triable  at  the  same  term 
thereof.    (27  U.  S.  Stats.  347.) 

Mileage.— More  than  one  traveling  fee  may  be 
taxed  as  costs  for  the  same  witness,  where  his  at- 
tendance was  required  on  different  occasions  by  rea- 
son of  the  sole  fault  of  the  defeated  party.  (Hake  v. 
Brown,  44  Fed.  Rep.  734.) 

§  329.  Printers'  fees. — For  publishing  any  no- 
tice or  order  required  by  law,  or  the  lawful  order 
of  any  court,  department,  bureau,  or  other  person, 
in  any  newspaper,  except  as  mentioned  in  sections 
thirty-eight  hundred  and  twenty-three,  thirty- 
eiglit  hundred  and  twenty-four,  and  thirty-eight 
hundred  and  twenty-five,  title,  "Public  Printing, 
Advertisements,  and  Public  Documents,"  forty 
cents  per  folio  for  the  first  insertion,  and  twenty 
cents  per  folio  for  each  subsequent  insertion.  The 
compensation  herein  provided  shall  include  the 
furnishing  of  lawful  evidence  under  oath,  of  publi- 
cation, to  be  made  and  furnished  by  the  printer 
or  publisher  making  such  publication.  (Rev.  Stats. 
eec.  853.) 


953  FEES.  §§  330-331 

Printing  records. — A  charge  for  printing  the  rec- 
ord and  brief  in  compliance  with  the  rules  of  the 
United  States  circuit  court  in  the  second  circuit  is  a 
proper  item  of  disbursement.  (Hake  v.  Brown,  44 
Fed.  Kep.  734.)  Fees  for  final  records  in  criminal 
cases  cannot  be  limited  to  four  folios  in  each  case  by 
an  arbitruiy  rule.  (Marvin  v.  United  States,  4ri  Fed. 
Rep.  4U5.) 

§  330.  Meaning  of  folio. — The  term  folio,  in 
this  chapter,  shall  mean  one  hundred  words,  count- 
ing each  hgure  as  a  word.  When  there  are  over 
fifty  and  under  one  hundred  words,  they  shall  be 
counted  as  one  folio;  but  a  less  number  than  fifty 
words  shall  not  be  counted  except  when  the  whole 
statute,  notice,  or  order  contains  less  than  fifty 
words.     (Rev.  Stats,  sec.  854.) 

Folio.— In  determining  the  number  of  folios  in  a 
final  record,  each  separate  and  distinct  order,  notice, 
or  other  paper  is  to  be  counted  separately,  accord- 
ing to  the  rule  hei'ein  prescribed.  (Erwin  v.  United 
States,  37  Fed.  Kep.  470.) 

§  331.  Cost  of  printing  taxed. — And  there 
shall  be  taxed  against  the  losing  party  in  each 
and  every  cause  pending  in  the  supreme  court  of 
the  United  States,  or  in  the  court  of  claims  of 
the  United  States,  the  cost  of  printing  the  record 
in  such  case  which  shall  be  collected,  except  when 
the  judgment  is  against  the  United  States,  by  the 
clerks  of  said  courts  respectively,  and  paid  into 
the  treasury  of  the  United  States.  (19  U.  S.  Stats. 
344;  1  Sup.  Rev.  Stats.  288.) 

Note.— If  the  expense  of  the  record  is  no  greater 
than  it  would  be  at  the  government  printing  office, 


§3  333-333  fees.  954 

it  may  be  taxed  as  costs.  (Railroad  Co.  v.  Collector, 
96  U.  S.  594.) 

§  332.  Payment  of  jurors  and  witnesses. — In 
cases  where  the  United  States  are  parties,  the  mar- 
shal sliall,  on  tlie  order  of  tlie  court,  to  be  entered 
on  its  minutes,  pay  to  the  jurors  and  witnesses 
all  fees  to  which  they  appear  by  such  order  to  be 
entitled,  which  sum  shall  be  allowed  him  at  the 
treasury  in  his  accounts.    (Eev.  Stats,  sec.  855.) 

§  333.     Fees    of    district    attorneys,  etc. — The 

fees  of  district  attorneys,  clerks,  marshals  and  com- 
missioners, in  cases  where  the  United  States  are 
liable  to  pay  the  same,  shall  be  paid  on  settling 
their  accounts  at  the  treasury.  (Rev.  Stats,  sec. 
856.)     See  Act  of  1896,  29  U.  S.  Stats.  179-186.) 

Note.— "Cases  where  the  United  States  are  liable 
to  pay"  refer  to  other  than  suits  where  the  fees  are 
collected  from  antagonists  of  the  gorei-nment.  (U.  S. 
V.  Cigars,  37  Leg.  Int.  237.)  When  officers  collect 
fees  in  revenue  cases,  they  may  retain  and  account 
for  them  in  their  semiannual  returns.  (U.  S.  v. 
Cigai-s,  37  Leg.  Int.  237.)  Fees  in  cases  where  United 
States  are  liable  to  pay  the  same  shall  be  paid  on 
settling  accounts  at  the  treasury.  (In  re  U.  S.  v. 
Cigars,  2  Fed.  Rep.  495.)  The  provisions  of  the  stat- 
utes providing  for  the  retention  of  fees  by  clerks  and 
other  officers  until  the  maximum  of  their  compensa- 
tion is  reached,  apply  to  fees  other  than  those  for 
which  the  government  is  responsible  and  which  are 
to  be  paid  out  of  the  ti-easury.  Services  rendered 
the  government  by  the  clerii  or  other  officers  of  the 
court  in  suits  by  it  for  which  the  law  fixes  certain 
fees  render  the  government  liable  therefor,  whether 


955  FEES.  §§  333a-334 

it  succeeds  in  collecting  its  legitimate  costs  or  not. 
(United  States  v.  Wolters,  51  Fed.  Rep.  896.) 

§  333  a.  Purchase  of  fees,  etc.,  of  court  officers 
prohibited. — That  it  shall  hereafter  be  unlawful 
for  any  United  States  marshal  or  deputy  marshal, 
or  any  clerk  or  deputy  clerk  of  any  court  of  the 
United  States  or  of  any  Territory  thereof,  or  any 
United  States  attorney  or  assistant  attorney,  or 
any  United  States  judge,  or  United  States  com- 
missioner, or  any  other  person  holding  any  office, 
employment  or  position  of  trust  or  profit  under  the 
Government  of  the  United  States  to  purchase  at 
less  than  the  full  face  value  thereof,  either  directly 
or  indirectly,  any  claim  for  fee,  mileage  or  ex- 
penses of  any  witness,  juror,  deputy  marshal  or 
any  other  officer  of  court  whatsover  against  the 
United  States  Government.    (29  U.  S.  Stats.  595.) 

§  334.  Fees,  how  recovered. — The  fees  and 
compensations  of  the  officers  and  persons  herein- 
before mentioned,  except  those  which  are  directed 
to  be  paid  out  of  the  treasury,  shall  be  recovered 
in  like  manner  as  the  fees  of  the  officers  of  the 
States,  respectively,  for  like  services  are  recovered. 
(Rev.  Stats,  sec.  857.) 

Fees,  how  collected. — This  section  provides  for  of- 
ficers retaining  their  fees.  (In  re  U.  S.  v.  Cigars,  2 
Fed.  Rep.  495.)  The  fees  other  than  those  which  are 
to  be  paid  out  of  the  treasury  are  those  which  are 
taxed  and  collected  in  suits;  and  these  are  to  be  re- 
covered as  like  fees  are  recovered  by  similar  officers 
of  the  State.  (In  re  U.  S.  v.  Cigars,  2  Fed.  Rep.  496.) 
If  there  wei'e  no  other  mode  of  payment  provided  by 


§  335  FEES,  956 

law,  under  this  section  the  services  of  the  marshal 
upon  the  arrest  of  a  vessel  might  be  deemed  covered 
by  the  statutory  expression  "like  services."  But  un- 
der the  law  and  practice  of  New  York,  the  sheriff's 
fees  must  be  paid  at  the  time  by  the  person  who  re- 
ceives the  property,  and  this  rule  is  applicable  to  the 
marshal's  fees.  A  similar  rule  has  long  existed  in 
the  English  admiralty  practice.  (The  Georgeanna,  31 
Fed.  Kep.  405.)  Under  this  section  a  marshal  who 
has  incurred  large  expenses  in  caring  for  and  preserv- 
ing a  vessel  in  his  custodj*  is  entitled  to  a  reimbui'se- 
ment  thereof  out  of  the  proceeds  of  her  sale  in  the 
registry  without  awaiting  the  final  decree  in  the 
cause.  (The  Allegheny,  85  Fed.  Rep.  463.)  The 
above  section  does  not  make  applicable  to  the  Fed- 
eral courts  a  special  State  statute  applying  only  to  a 
certain  part  of  the  State,  and  establishing  a  practice 
different  from  the  general  law  of  the  State.  (Aiken 
V.  State,  13  U.  S.  App.  394;  57  Fed.  Rep.  423.) 

§  335.     Suit  by  a  poor  person,  costs  and  counsel. 

— Any  citizen  of  the  L'nited  States,  entitled  to 
commence  any  suit  or  action  in  any  court  of  the 
United  States,  may  commence  and  prosecute  to 
conclusion  any  such  suit  or  action  without  being 
required  to  prepay  fees  or  costs,  or  give  security 
therefor  before  or  after  bringing  suit  or  action, 
upon  filing  in  said  court  a  statement  under  oath, 
in  writing,  that,  because  of  his  poverty,  he  is  un- 
able to  pay  the  costs  of  said  suit  or  action  which 
he  is  about  to  commence,  or  to  give  security  for 
the  same,  and  that  he  believes  he  is  entitled  to 
the  redress  he  seeks  by  such  suit  or  action,  and 
setting  forth  briefly  the  nature  of  his  alleged 
cause  of  action.    (27  U.  S.  Stats.  252.) 


957  FEES.  §  335 

Action  by  poor  person. — The  right  given  to  a  poor 
person  to  bring  a  suit  without  prepayment  of  fees  or 
costs  embraces  the  right  to  appeal  to  the  circuit  court 
of  appeals.  When  the  proper  oath  has  been  filed  no 
appeal  bond  can  be  required.  (Fuller  v.  Montague, 
53  Fed.  Rep.  206.)  By  the  above  act  the  privilege  of 
suing  in  forma  pauperis  is  granted  to  every  poor  per- 
son in  the  jurisdiction  of  the  United  States.  (St. 
Louis  &  S.  F.  Ry.  Co.  v.  Fan-,  12  U.  S.  App.  520;  56 
Fed.  Rep.  994.)  If  the  clerk  of  the  circuit  court  re- 
fuses to  deliver  the  record  for  filing  in  an  appellate 
court  until  his  fees  are  paid,  the  circuit  court,  on 
granting  summary  relief,  will  require  the  appellant 
to  file  an  affidavit  of  poverty  in  the  appellate  court. 
(Columb  V.  Webster  Mfg.  Co.,  76  Fed.  Rep.  198.) 
When  one  shows  a  right  to  sue  in  forma  pauperis 
the  court  will  appoint  an  attorney  for  him,  whose 
fee  will  be  contingent  on  success,  and  in  any  event 
will  not  be  larger  than  the  quantum  meruit.  (Whe- 
lan  V.  Manhattan  Ry.  Co.,  86  Fed.  Rep.  219.)  The 
act  does  not  apply  to  a  person  who  receives  a  salary 
of  twenty  dollars  per  weelj,  and  who  pays  two  hun- 
dred dollars  per  year  for  the  rent  of  the  house  he 
lives  in.    (Wiclielman  v.  Dicli  Co.,  85  Fed.  Rep.  851.) 

"■Fees  or  costs."— The  word  "costs,"  used  in  the 
above  section,  means  taxable  costs  to  be  recovered  by 
the  adverse  party.  "Fees"  means  fees  of  officers  in 
the  strict  sense.  (Columb  v.  Webster  Mfg.  Co.,  76  Fed. 
Rep.  198.) 

Affidavit  of  poverty. — The  sw^orn  statement  men- 
tioned in  the  statute  must  show  that  plaintiff  is  a  cit- 
izen, and  that  there  is  no  person  interested  who  is 
able  to  pay  or  secure  the  costs.  (Boyle  v.  Great 
Northern  Ry.  Co.,  63  Fed.  Rep.  539.)  Pending  an  ap- 
plication for  the  allowance  of   an  appeal   defendant 


§  335  FEES.  956 

law,  under  this  section  the  services  of  the  marshal 
upon  the  arrest  of  a  vessel  might  be  deemed  covered 
by  the  statutory  expression  "like  services."  But  un- 
der the  law  and  practice  of  New  York,  the  sheriffs 
fees  must  be  paid  at  the  time  by  the  person  who  re- 
ceives the  property,  and  this  rule  is  applicable  to  the 
marshal's  fees.  A  similar  rule  has  long  existed  in 
the  English  admiralty  practice.  (The  Georgeanna,  31 
Fed.  Rep.  405.)  Under  this  section  a  marshal  who 
has  incurred  large  expenses  in  caring  for  and  preserv- 
ing a  vessel  in  his  custody  is  entitled  to  a  reimbm'se- 
ment  thereof  out  of  the  proceeds  of  her  sale  in  the 
registry  without  awaiting  the  finiaJ  decree  in  the 
cause.  (The  Allegheny,  85  Fed.  Rep.  463.)  TI.e 
above  section  does  not  make  applicable  to  the  Fed- 
eral courts  a  special  State  statute  applying  only  to  a 
certain  part  of  the  State,  and  establishing  a  practice 
different  from  the  general  law  of  the  State.  (Aiken 
V.  State,  13  U.  S.  App.  394;  57  Fed.  Rep.  423.) 

§  335.  Suit  by  a  poor  person,  costs  and  counsel. 
— Any  citizen  of  the  United  (States,  entitled  to 
commence  any  suit  or  action  in  any  court  of  the 
United  States,  may  commence  and  prosecute  to 
conclusion  any  such  suit  or  action  without  being 
required  to  prepay  fees  or  costs,  or  give  security 
therefor  before  or  after  bringing  suit  or  action, 
upon  filing  in  said  court  a  statement  under  oath, 
in  writing,  that,  because  of  his  poverty,  he  is  un- 
able to  pay  the  costs  of  said  suit  or  action  which 
he  is  about  to  commence,  or  to  give  security  for 
the  same,  and  that  he  believes  he  is  entitled  to 
the  redress  he  seeks  by  such  suit  or  action,  and 
setting  forth  brioliy  the  nature  of  his  alleged 
cause  of  action.    (27  U.  S.  Stats.  25^.) 


957  FEES.  §  335 

Action  by  poor  person.— The  right  given  to  a  poor 
person  to  bring  a  suit  without  prepayment  of  fees  or 
costs  embraces  the  right  to  appeal  to  the  circuit  court 
of  appeals.  When  the  proper  oath  has  been  filed  no 
appeal  bond  can  be  required.  (Puller  v.  Montague, 
53  Fed.  Rep.  206.)  By  the  above  act  the  privilege  of 
suing  in  forma  pauperis  is  granted  to  every  poor  per- 
son in  the  jurisdiction  of  the  United  States.  (St. 
Louis  &  S.  F.  Ry.  Co.  v.  Fan%  12  U.  S.  App.  520;  56 
Fed.  Rep.  994.)  If  the  clerk  of  the  circuit  court  re- 
fuses to  deliver  the  record  for  filing  in  an  appellate 
court  until  his  fees  are  paid,  the  circuit  court,  on 
granting  summary  relief,  will  require  the  appellant 
to  file  an  aJfidavit  of  poverty  in  the  appellate  court. 
(Columb  V.  Webster  Mfg.  Co.,  76  Fed.  Rep.  198.) 
When  one  shows  a  right  to  sue  in  forma  pauperis 
the  court  will  appoint  an  attorney  for  him,  whose 
fee  will  be  contingent  on  success,  and  in  any  event 
will  not  be  larger  than  the  quantum  meruit.  (Whe- 
lan  V.  Manhattan  Ry.  Co.,  86  Fed.  Rep.  219.)  The 
act  does  not  apply  to  a  person  who  receives  a  salary 
of  twenty  dollars  per  week,  and  who  pays  two  hun- 
dred dollars  per  year  for  tlie  rent  of  the  house  he 
lives  in.    (Wickelman  v.  Dick  Co.,  85  Fed.  Rep.  851.) 

"Fees  or  costs."— The  word  "costs,"  used  in  the 
above  section,  means  taxable  costs  to  be  recovered  by 
the  adverse  party.  "Fees"  means  fees  of  oflBcers  In 
the  strict  sense.  (Columb  v.  Webster  Mfg.  Co.,  76  Fed. 
Rep.  198.) 

Afladavit  of  poverty. — The  STVorn  statement  men- 
tioned in  the  statute  must  show  that  plaintiff  is  a  cit- 
izen, and  that  there  is  no  person  interested  who  is 
able  to  pay  or  secure  the  costs.  (Boyle  v.  Great 
Northern  Ry.  Co.,  63  Fed.  Rep.  539.)  Pending  an  ap- 
plication for  the  allowance  of   an  appeal   defendant 


§§  336-338  FEES.  958 

cannot  move  to  dismiss  the  case  because  the  oath 
for  leave  to  prosecute  in  form  a  pauperis  was  defec- 
tive both  in  form  and  in  substance.  (Fuller  v.  Monta- 
gue, 53  Fed.  Kep.  206.)  It  is  the  filing  of  the  affidavit, 
and  not  in  truth  of  it,  that  constitutes  an  answer  to 
defendant's  demand.  (McDuffee  v.  Boston  &  M.  R. 
Co.,  82  Fed.  Rep.  865.)  An  affidavit  of  facts  show- 
ing that  the  cause  is  not  frivolous  should  also  be 
filed.  (Whelan  v.  Manhattan  Ky.  Co.,  86  Fed.  Rep. 
219.) 

§  336.  Affidavit  when  demand  for  fees,  etc.,  is 
made. — Alter  any  sucli  suit  ur  action  sliaii  have 
been  brought,  or  that  is  now  pending,  the  plaintiff 
may  answer  and  avoid  a  demand  for  fees  or  secur- 
ity for  costs  by  fiUng  a  like  affidavit,  and  willful 
false  swearing  in  any  affidavit  provided  for  in  this 
or  the  previous  section  shall  be  punishable  as  per- 
jury is  in  other  cases.     (27  U.  S.  Stats.  253.) 

§  337.  Process,  etc.,  to  issue. — The  officers  of 
court  shall  issue,  .serve  all  process,  and  perform  all 
duties  in  such  cases,  and  witnesses  shall  attend 
as  in  other  cases,  and  the  plaintiff  sliall  have  the 
same  remedies  as  are  provided  by  law  in  other 
cases.    (27  U.  S.  Stats.  252.) 

^  338.  Assignment  of  counsel — Costs  on  judg- 
ment.— The  court  may  re(iucst  any  attorney  of 
the  court  to  represent  such  poor  person,  if  it  deems 
the  cause  worthy  of  a  trial,  and  may  dismiss  any 
such  cause  so  brought  under  this  act  if  it  be  made 
to  appear  that  the  allegation  of  poverty  is  un- 
true, or  if  said  court  be  satisfied  that  the  alleged 


95y  FEES.  §  338 

cause  of  action  is  frivolous  or  malicious.  Judg- 
ment may  be  rendered  for  costs  at  the  conclusion 
of  the  suit,  as  in  other  cases.  Provided,  that  the 
United  States  shall  not  be  liable  for  any  of  the 
costs  thus  incurred.     (37  TJ.  S.  Stats.  252.) 

Dismissal  of  cause.— In  view  of  the  above  section, 
the  clerk  should  not  ordinarily  assume  to  act  under 
the  statute  Trithout  prior  conference  With  the  f^oiirt. 
(Ck^Iumb  V.  Webster  Mfg.  Co.,  76  Fed.  Rep.  198.)     " 


339  JUBiES.  9G0 


CHAPTER  XVII. 

JUKIES. 

§  339.  Juroi*s,  qualifications  and  selection  of. 

§  i!4U.  Juries,  race  or  color  not  to  exclude. 

§  J41.  Jurors,  per  diem. 

§  342.  Jurors,  how  drawn. 

§  343.  Qualifications. 

§  344.  Juries  interchangeable. 

§  345.  Jurors,  how  appoi'tioned. 

§  346.  Venire,  how  issued  and  served. 

§  347.  Talesmen  for  petit  juries. 

§  348.  Special  juries. 

§  349.  Number  of  grand  jurors. 

§  350.  Foreman  of  grand  jury. 

§  351.  Grand  juries,  when  summoned. 

§  352.  Discharge  of  grand  juries. 

§  353.  Juries  not  to  be  summoned  oftener  than  once 

in  two  years. 

§  354.  Grand    juries  of    district    courts    may  act  in 

cases  cognizable  in  circuit  courts. 

§  355.  ChaUenges.  » 

§  356.  Challenges  in  summary  trials. 

§  357.  Grand  and  petit  jurors. 

§  358.  Rules  in  particular  states. 

§  339.  Jurors,  qualifications  and  selection  of. — 
Jurors  to  serve  in  the  courts  of  the  United  States 
in  each  State  respectively,  shall  have  the  same 
qualifications, subject  to  the  provisions  hereinafter 
contained,  and  be  entitled  to  the  same  exemptions,  -, 
as  jurors  of  the  highest  court  of  law  in  such  State  m 
may  have  and  be  entitled  to  at  the  time  when  such 


961  JUKiES.  §  339 

jurors  for  service  in  the  courts  of  the  United 
States  are  summoned;  and  they  sliall  be  designa- 
ted by  ballot,  lot,  or  otherwise,  according  to  the 
mode  of  forming  such  juries  then  practiced  in 
such  State  court,  so  far  as  such  mode  may  be  prac- 
ticable by  the  courts  of  the  United  States  or  the 
oihcers  thereof.  And  for  this  purpose  the  said 
court  may,  by  rule  or  order,  conform  the  designa- 
tion and  impaneling  of  Juries,  in  substance,  to  the 
laws  and  usages  relating  to  jurors  ifi  the  State 
courts  from  time  to  time  in  force  in  such  State. 
(Eev.  Stats.  800.) 

Note.— See  United  States  v.  Rose,  6  Fed.  Rep.  136. 

Qualifications  of  juror.— Qiialifications  relate  to  the 
juror  personally  as  to  age,  property,  or  citizenship 
(U.  S.  V.  Collins,  1  Woods,  499;  Fed.  Cas.  No.  14837), 
and '  not  to  special  reasons,  which,  if  they  exist,  do 
not  disqualify  the  juror.  (U.  S.  v.  Williams,  1  Dill. 
485;  Fed.  Cas.  No.  16716.)  This  section  relates  to 
qualifications  which  are  requisite  according  to  the 
law  and  practice  of  the  respective  States.  (IT.  S.  v. 
Insurgents.  2  Dall.  335;  U.  S.  v.  Collins,  1  Woods, 
499;  Fed.  Cas.  No.  14837;  U.  S,  v.  Wilson,  6  McLean, 
604;  Fed.  Cas.  No.  16737;  U.  S.  v.  G-ardner,  5  Chic.  L. 
N.  501;  Fed.  Cas.  No.  15187;  U.  S.  r.  Coit,  1  Car.  Law 
Repos.  346;  Fed.  Cas.  No.  14829;  contra,  U.  S.  v. 
Price,  3  Hall  L.  J.  121;  Fed.  Cas.  No.  16088.)  The 
placing  of  a  man's  name  on  the  tax-book  implies  only 
the  qualification  of  being  a  tax-payer.  (U.  S.  v.  Col- 
lins, 1  Woods,  499;  Fed.  Cas.  No.  14837.)  Persons  ex- 
empt are  not  thereby  disqualified.  (U.  S.  v.  Gardner, 
5  Chic.  L.  N.  501;  Fed.  Cas.  No.  15187.)  It  is  not  nec- 
essary that  the  rule  specify  the  qualifications,  as 
jurors  may  be  objected  to  by  challenge  (U.  S.  v.  Col- 
lins, 1  Wood,  499;  Fed.  Cas.  No.  14837),  according  to 
Fed.  Peoc— 81. 


§  340  JURIES.  962 

the  practice  under  the  State  law  (U.  S.  v.  Douglass,  2 
Blatcht.  207;  Fed.  Cas.  No.  14989;  U.  S.  v.  Reed,  2 
Blatchf.  435;  Fed.  Cas.  No.  16134;  U.  S.  v.  Tallman, 
10  Blatchf.  21;  Fed.  Cas.  No.  16429;  U.  S.  v.  Tuska,  14 
Blatchf.  5;  Fed.  Cas.  No.  16550),  unless  act  of  Con- 
gress expressly  provides  for  peremptory  challenges 
(U.  S.  V.  Shaclileford,  18  How.  588),  as  this  section 
does  not  relate  to  peremptory  challenges.  (U.  S.  v. 
Devlin,  6  Blatchf.  71;  Fed.  Cas.  No.  MQ-oS;  U.  S.  v. 
Douglass,  2  Blatchf.  207;  Fed.  Cas.  No.  14989.)  The 
court  may  direct  the  summoning  of  any  number  of 
jurors  (U.  S.  v.  Insurgents,  2  Dall.  335;  U.  S.  v.  Fries, 
3  Dall.  515;  U.  S.  v.  Dow,  Taney,  34;  Fed.  Cas.  No. 
14990);  and  they  should  be  selected  from  the  district 
at  large.  (U.  S.  r.  Woodruff,  4  McLean,  105;  Fed. 
Cas.  No.  16758.)  If  a  juror  becomes  sicli  after  an 
opening  statement  he  may  be  discharged  and  another 
selected,  if  that  is  allowable  under  the  State  law. 
(Silsby  V.  Foote,  14  How.  218.)  A  teiTitorial  court  is 
not  deprived  of  Its  jurisdiction  to  try  a  person  in- 
dicted for  a  criminal  offense  by  the  fact  that  an  alien 
sat  on  the  grand  jury  that  found  the  indictment,  un- 
der a  provision  of  a  territorial  statute  permitting  it. 
(Ex  parte  Hai'ding,  120  U.  S.  783.)  Federal  courts  of 
their  own  motion,  or  that  of  counsel,  may  enforce 
other  objections  than  prescribed  by  State  statutes  to 
grand  jurors.  (United  States  v.  Jones,  69  Fed.  Rep. 
973.) 

§  340.  Race  or  color  not  to  exclude. — No  citi- 
zen possessing  all  other  qualifications  which  are 
or  may  be  prescribed  by  law  shall  be  disqualified 
lor  service  as  grand  or  petit  juror  in  any  court  of 
the  United  States,  or  of  any  State,  on  account 
of  race,  color,  or  previous  condition  of  servitude; 
and  any  officer  or  other  person  charged  with  any 


1 


903  JUKiES.  §§  341-343 

duty  in  the  selection  or  summoning  of  jurors  who 
shall  exclude  or  fail  to  summon  any  citizen  for  the 
cause  aforesaid  shall,  on  conviction  thereof,  be 
deemed  guilty  of  a  misdemeanor,  and  be  fined 
not  more  than  five  thousand  dollars.  (18  U.  S. 
Stats.  336;  1  Sup.  Eev.  Stats.  149.) 

Note.^No  person  charged  with  a  crime  involving 
life  or  liberty  is  entitled  by  the  United  States  Consti- 
tution to  have  his  race  represented  upon  the  grand 
jury  that  may  indict  him,  or  upon  the  petit  jury  that 
may  tiy  him.  (In  re  Shibuya  Jugiro,  140  U.  S.  291; 
In  re  Wood,  140  U.  S.  278,  370.) 

§  341.  Jurors,  per  diem. — That  the  per  diem 
pay  of  each  juror,  grand  or  petit,  in  any  court  of 
the  United  States,  shall  be  two  dollars.  (21  U.  S. 
Stats.  43.) 

§  342.  Jurors,  how  drawn. — And  that  all  such 
jurors,  grand  and  petit,  including  those  summoned 
during  the  session  of  the  court,  shall  be  publicly 
drawn  from  a  box  containing,  at  the  time  of 
each  drawing,  the  names  of  not  less  than  three 
hundred  persons,  possessing  the  qualifications  pre- 
scribed in  section  eight  hundred  of  the  Revised 
Statutes,  which  names  shall  have  been  placed 
therein  by  the  clerk  of  such  court  and  a  commis- 
sioner, to  be  appointed  by  the  judge  thereof,  which 
commissioner  shall  be  a  citizen  of  good  standing, 
residing  in  the  district  in  which  such  court  is  held, 
and  a  well-known  member  of  the  principal  political 
party  in  the  district  in  which  the  court  is  held 
opposing  that  to  which  the  clerk  may  belong,  the 
clerk  and  said  commissioner  each  to    place    one 


§  342  JURIES.  964 

name  in  said  box  alternately,  without  reference  to 
party  affiliations,  until  the  whole  number  required 
shall  be  placed  therein.  But  nothing  herein  con- 
tained shall  be  construed  to  prevent  any  Judge 
from  ordering  the  names  of  jurors  to  be  drawn 
from  the  boxes  used  by  the  State  authorities  in 
selecting  jurors  in  the  highest  courts  of  the  State. 
(21  U.  S.  Stats.  43.) 

Drawing  jurors. — In  drawing  jurors  the  great  ob- 
ject is  to  obtain  qualified  jurors,  and  this  is  effected 
by  the  courts  of  the  United  States  and  their  officers, 
and  is  under  the  sole  regulation  of  Congress.  (United 
States  V.  Collins,  1  Woods,  499.  Fed.  Cas.  No.  14837; 
United  States  v.  Woodruff,  4  McLean,  105,  Fed.  Cas.  No. 
16758;  United  States  v.  Gardner,  5  Chic.  L.  N.  501, 
Fed.  Cas.  No.  15187.)  The  State  law  does  not  apply. 
(Alston  V.  Manning,  1  Chase,  460,  Fed.  Cas.  No.  266; 
United  States  v.  Collins,  1  Woods,  499,  Fed.  Cas.  No. 
14837.)  The  marshal  is  substituted  for  the  ordinary, 
who  acts  under  State  laws  (United  States  v.  Collins, 
1  Woods,  499,  Fed.  Cas.  No.  14837;  United  States  v. 
Woodruff,  4  McLean,  105,  Fed.  Cas.  No.  16758);  and 
the  jurors  need  not  be  taken  from  the  lists  made 
by  State  authority;  conformity  is  required  only  in 
two  respects:  first,  as  to  qualifications  and  exemp- 
tions; second.  a.s  to  the  mode  of  designating  and  im- 
paneling (United  States  v.  Collins,  1  Woods,  499,  Fed. 
Cas.  No.  14837;  see  United  States  v.  Gardner,  5  Chic. 
L.  N.  501,  Fed.  Cas.  No.  15187);  but  a  literal  con- 
formity is  not  required.  (United  States  v.  Tallman. 
10  Blatchf.  21.  Fed.  Cas.  No.  16429;  United  States 
V.  Wilson.  6  McLean,  604,  Fed.  Cas.  No.  16737.)  The 
act  of  Congress  of  June  30,  1879.  having  reference 
to  drawing  jurors  for  the  Federal  courts,  did  not 
repeal  U.  S.  Rev.  Stats,  sees.  800,  802,  804,  808.  pre- 
scribing the  qualifications,  etc..  of  jurors.  (United 
States  V.  Eagan,  30  Fed.  Rep.  608.) 


965  JURIES.  §§  343-345 

§  343.  Qualifications. — And  no  person  shall 
serve  as  a  petit  juror  more  than  one  term  in  any 
one  year,  and  all  juries  to  serve  in  courts  after 
the  passage  of  this  act  shall  be  drawn  in  conform- 
ity herewith;  provided,  that  no  citizen  possessing 
all  other  qualifications  which  are  or  may  be  pre- 
scribed by  law  shall  be  disqualified  for  service  as 
grand  or  petit  juror  in  any  court  of  the  United 
States  on  account  of  race,  color,  or  previous  con- 
dition of  servitude.     (21  U.  S.  Stats.  43.) 

Note.— The  provisions  of  this  section  are  mandatory 
(United  States  v.  Ambrose,  3  Fed.  Eep.  283),  and  any 
irregularity  which  may  arise  from  other  than  evil 
motives  will  not  be  fatal.  So,  the  mere  fact  that  the 
name  of  one  grand  juror  contained  in  the  venire 
was  not  put  in  the  box  nor  drawn  will  not  vitiate 
the  indictment,  unless  the  act  was  done  in  bad  faith, 
(United  States  v.  Ambrose,  3  Fed.  Rep.  283.)  This 
provision  as  to  qualifications  is  authorized  by  the 
Thirteenth  and  Fourteenth  Amendments  (Ex  parte 
Virginia,  100  U.  S.  339). 

§  344.  Juries  interchangeable. — Whenever  any 
circuit  and  district  court  of  the  United  States 
shall  be  held  at  the  same  time  and  place,  they  shall 
be  authorized  and  required,  if  the  business  of  the 
courts  will  permit,  to  use  interchangeably  the 
juries  in  either  court  drawn  according  to  the  pro- 
visions of  said  act.    (25  U.  S.  Stats.  386.) 

§  345.  Jurors,  how  apportioned. — Jurors  shall 
be  returned  from  such  parts  of  the  district,  from 
time  to  time,  as  the  court  shall  direct,  so  as  to  be 
most  favorable  to  an  impartial  trial,  and    so    as 


§§  346-347  JURIES.  966 

not  to  incur  jpi  unnecessary  expense,  or  unduly 
to  burden  the  citizens  of  any  part  of  tlie  district 
with  such  services.     (Kev.  Stats,  sec.  802.) 

Note.— A  jury  cannot  be  selected  from  any  partic- 
ular locality  without  an  order  of  court.  (U.  S.  v. 
Coit,  1  Car.  Law.  Kepos.  34G,  Fed.  Cas.  No.  14829; 
but  see  U.  S.  v.  Price,  3  Hall.  L.  J.  121,  Fed.  Cas. 
No.  160SS.)  The  part  of  the  district  from  which  jurors 
may  be  drawn  is  within  the  discretion  of  the  court. 
(U.  S.  V.  Stowell,  2  Curt.  153,  Fed.  Cas.  No.  1G409; 
U.  S.  V.  Woodruff,  4  McLean,  105,  Fed.  Cas.  No. 
1675S.) 

§  346,  Venire,  how  issued  and  served. — Writs 
of  venire  facias,  when  directed  by  the  court,  shall 
issue  from  the  clerk's  office,  and  shall  be  served 
and  returned  by  the  marshal  in  person,  or  by  his 
deputy;  or  in  case  the  marshal  or  his  deputy  is 
not  an  indifferent  person,  or  is  interested  in  the 
event  of  the  cause,  by  such  fit  person  as  may  be 
specially  appointed  for  that  purpose  by  the  court, 
who  shall  administer  to  him  an  oath  that  he  will 
truly  and  impartially  serve  and  return  the  writ. 
(Rev.  Stats,  sec.  803.) 

§  347.  Talesmen  for  petit  juries. — When  from 
challenges  or  otherwise,  there  is  not  a  petit  jury 
to  determine  any  civil  or  criminal  cause,  the  mar- 
shal or  his  deputy  shall,  by  order  of  the  court 
in  which  such  defect  of  Jurors  happens,  return 
jurymen  from  the  bystanders  sufficient  to  complete 
the  panel;  and  when  the  marshal  or  his  deputy  is 
disqualified  as  aforesaid,  jurors  may  be  so  returned 
by  such  disinterested  person  as  the  court  may  ap- 


967  JURIES.  §§  348-349 

point,  and  such  person  shall  be  sworn,  as  pro- 
vided in  the  preceding  section.  (Ec^.  Stats,  sec. 
804.) 

Note.— This  section  is  not  repealed  in  terms  by  the 
act  of  June  30,  1879,  nor  is  it  repealed  by  implication. 
(U.  S.  V.  Rose,  6  Fed.  Rep.  137;  St.  Clair  v.  United 
States,  154  U.  S.  134.)  Whenever  by  reason  of  chal- 
lenge there  is.  not  a  petit  jury,  it  is  within  the  prov- 
ince of  the  court  to  direct  the  marshal  to  complete 
the  panel  by  calling  a  sufficient  number  from  the 
bystanders.  (U.  S.  v.  Rose,  6  Fed.  Rep.  137;  St.  Clair 
V.  United  States,  154  U.  S.  134.)  Persons  selected 
for  the  panel,  and  present  in  court  when  returned 
by  the  marshal,  are  bystanders,  although  they  were 
not  in  court  when  summoned.  (U.  S.  v.  Loughery,  13 
Blatchf.  267,  Fed.  Cas.  No.  15(331.) 

§  348.  Special  juries. — When  special  juries  are 
ordered  in  any  circuit  court,  they  shall  be  return- 
ed by  the  marshal  in  the  same  manner  and  form 
as  is  required  in  such  cases  by  the  laws  of  the  sev- 
eral States.     (Eev.  Stats,  sec.  805.) 

§  349.  Number  of  grand  jurors. — Every  grand 
jury  impaneled  before  any  district  or  circuit  court 
shall  consist  of  not  less  than  sixteen  nor  more 
than  twenty-three  persons.  If,  of  the  persons 
summoned  less  than  sixteen  attend,  they  shall  be 
placed  on  the  grand  jury,  and  the  court  shall  or- 
der the  marshal  to  summon,  either  immediately 
or  for  a  day  fixed,  from  the  body  of  the  district, 
and  not  from  the  bystanders,  a  sufficient  num- 
ber of  persons  to  complete  the  grand  jury.  And 
whenever  a  challenge  to  a  grand  juror  is  allowed. 


§§  350-351  JURIES.  968 

and  there  are  not  in  attendance  other  jurors  suffi- 
cient to  complete  the  grand  jury,  the  court  shall 
make  a  like  order  to  the  marshal  to  summon  a 
sufficient  number  of  persons  for  that  purpose. 
(Eev.  Stats,  sec.  808.) 

Note.— This  section  does  not  apply  to  territorial 
courts.  (Reynolds  v.  United  States.  98  U.  S.  145.) 
Although  a  person  summoned  as  a  grand  juror  fails 
to  attend,  yet  the  marshal  cannot  excuse  him  and 
substitute  another  in  his  place.  (1  Burr's  Trial,  37.) 
The  court  has  power  to  determine  the  number  to  be 
summoned  that  a  grand  jury  may  be  constituted. 
<United  States  v.  Tuslia,  24  Blatchf.  5,  Fed.  Cas.  No. 
16550.)  Complaint  cannot  be  made  of  the  excusi.iug 
9t  grand  jurors  by  the  court  of  its  own  motion  where 
those  substituted  were  not  disqualified  (United  States 
r.  Jones,  69  Fed.  Rep.  973.) 

§  350.  Foreman  of  grand  jury. — From  the  per- 
sons summoned  and  accepted  as  grand  jurors, 
the  court  shall  appoint  the  foreman,  who  shall 
have  power  to  administer  oaths  and  affirmations 
to  witnesses  appearing  before  the  grand  jury. 
(Eev.  Stats,  sec.  809.) 

§  351.     Grand    juries,    when    summoned. — No 

grand  juries  shall  be  summoned  to  attend  any 
circuit  or  district  court  unless  one  of  the  judges 
of  such  circuit  court,  or  the  judge  of  such  district, 
in  his  own  discretion,  or  upon  a  notification  by  the 
district  attorney  that  such  jury  will  be  needed,  or- 
ders a  venire  to  issue  therefor.  And  either  of  the 
afwd  courts  may  in  term  order  a  grand  jury  to  be 
f—nmoned  at  such  time  and  to  serve  such  time  as 


969  JURIES.  §§  352  353 

it  may  direct  whenever  in  its  judgment  it  may  be 
proper  to  do  so.  But  nothing  herein  shall  operate 
to  extend  beyond  the  time  permitted  by  law  the 
imprisonment  before  indictment  found  of  a  person 
accused  of  a  crime  or  offense,  or  the  time  during 
which  a  person  so  accused  may  be  held  under  rec- 
ognizance before  indictment  found.  (Rev.  Stats, 
sec.  810.) 

Note.— An  order  entered  by  the  clerk  by  authority 
of  the  judge  is  of  the  same  effect  as  if  done  by  the 
judge  himself.  (United  States  v.  Reed,  2  Blatchf. 
435,  Fed.  Cas.  No.  16134.) 

§  352.  Discharge  of  grand  juries. — The  circuil 
and  district  courts,  the  district  courts  of  the  Ter- 
ritories, and  the  supreme  court  of  the  District 
of  Columbia,  may  discharge  their  grand  juriea 
whenever  they  deem  a  continuance  of  the  sessions 
of  such  juries  unnecessary.    (Rev.  Stats,  sec.  811.) 

■  §  353.  Jurors  not  to  be  summoned  oftener  than 
once  in  two  years. — No  person  shall  be  summoned 
as  a  juror  in  any  circuit  or  district  court  more 
than  once  in  two  years,  and  it  shall  be  sufficient 
cause  of  challenge  to  any  juror  called  to  be  sworn 
in  any  cause  that  he  has  been  summoned  and  at- 
tended said  court  as  a  juror  at  any  term  of  saia 
court  held  within  two  years  prior  to  the  time  ol 
such  challenge.     (Rev.  Stats,  sec.  812.) 

Note. — It  is  not  necessary  that  twenty-four  month* 
should  elapse  between  the  close  of  the  term  at  which 
the  juror  serves  and  the  beginning  of  the  next  term 
at  which  he  is  summoned.     (United  States  v.  Reeves, 


§§  354-355  JURIES.  970 

3  Woods,  199,  Fed.  Cas.  No.  16139.)  That  a  grand 
juror  has  served  within  two  years  is  not  sufficient 
reason  to  quash  an  indictment.  (United  States  v. 
Reeves,  3  Woods,  199,  Fed.  Cas.  No.  16139.)  This  sec- 
tion does  not  apply  to  the  courts  of  the  District  of 
Columbia;  they  are  governed  by  D.  C.  Rev.  Stats,  sec. 
816.  (United  States  v.  Nardello,  4  Mackey  503.)  A 
person  engaged  in  business  in  Washington,  claiming 
residence  in  Virginia — Held,  on  the  facts,  a  competent 
juror,  under  D.  C.  Rev.  Stats,  sec.  872.     (Id.) 

§  354.  Grand  juries  of  district  courts  may  act 
in  case  cognizable  in  circuit  courts. — The  grand 
jury  impaneled  and  sworn  in  any  district  court 
may  take  cognizance  of  all  crimes  and  offenses 
within  the  jurisdiction  of  the  circuit  court  for  said 
district  as  well  as  of  said  district  court.  (Eev. 
Stats,  sec.  813.) 

§  355.  Challenges. — When  the  offense  charged 
is  treason  or  a  capital  offense,  the  defendant  shall 
be  entitled  to  twenty  and  the  United  States  to 
five  peremptory  challenges.  On  the  trial  of  any 
other  felony,  the  defendant  shall  be  entitled  to 
ten  aDd  the  United  States  to  three  peremptory 
challenges;  and  in  all  other  cases,  civil  and  crimi- 
nal, each  party  shall  be  entitled  to  three  peremp- 
tory challenges;  and  in  all  cases  where  there  are 
several  defendants  or  several  plaintiffs,  the  par- 
ties on  each  side  shall  be  deemed  a  single  party  for 
the  purposes  of  all  c]iallenges  under  this  section. 
All  challenges,  whether  to  the  array  or  panel,  or  to 
individual  jurors  for  cause  or  favor,  shall  be  tried 
by  the  court  without  the  aid  of  triers.  [See  sees. 
1031-4303.]     Eev.  Stats,  sec.  819.) 


971  JURIES.  §  SD5 

Note. — Any  other  felony  means  other  offenses  than 
capital  (United  States  v.  Coppersmith,  4  Fed.  Rep. 
198);  and  in  such  cases  this  section  operates  to  give 
the  defendant  ten  challenges,  where  the  offense  is 
declared  by  statute  to  be  a  felony;  and  where  Con- 
gress punishes  it  by  its  common-law  name  and  at 
common  law  it  is  a  felony,  or  where  Congress  adopts  a 
State  law  which  designates  it  as  a  felony.  (United 
States  V.  Coppersmith,  4  Fed.  Rep.  198.)  It  is  intended 
by  the  term  "any  other  felony"  to  designate  other  of- 
fenses than  capital  offenses.  (United  States  v.  Copper- 
smith, 4  Fed.  Rep.  199.)  On  removal  of  a  criminal 
case  from  the  State  court,  the  number  of  challenges 
is  regulated  by  this  section  and  not  by  the  State  law. 
(Georgia  v.  O'Grady,  3  Woods,  496,  Fed.  Cas.  No. 
5352;  see  United  States  v.  Marchant,  12  Wheat.  480.) 
An  objection  that  some  of  the  grand  jurors  were  not 
properly  summoned  or  did  not  possess  the  proper 
qualifications  cannot  be  taken  by  plea  in  abatement. 
(United  States  v.  Tuska,  14  Blatchf.  5,  Fed.  Cas.  No. 
16550.)  The  act  of  Congress  of  June,  1872,  as  em- 
bodied in  this  section,  restricts  parties  indicted  for 
felony  to  twenty  peremptory  challenges,  and  where 
several  parties  are  indicted  for  a  joint  felony  they 
are  deemed  a  single  party  for  the  purposes  of  all 
challenges  under  that  section.  (United  States  v. 
Hall,  44  Fed.  Rep.  883.)  Defendants  cannot  in  dif- 
ferent actions  be  deprived  of  their  several  challenges 
to  jurors  by  the  order  of  the  court  that  the  cases 
shall  be  tried  together  (Mutual  Life  Ins.  Co.  v.  Hill- 
mon,  145  U.  S.  285).  In  a  Federal  court  it  constitutes 
no  ground  of  challenge  to  the  array  of  jurors  that 
three  of  the  persons  named  in  the  venire  had  died 
after  their  names  were  placed  in  the  wheel,  and  before 
the  time  of  the  drawing  (Pullman's  Palace  Car.  Co.  v. 
Harkins,  17  U.  S.  App.  22;  55  Fed.  Rep.  932).  A  de- 
cision  of   the  trial  judge   upon   a   challenge   to  the 


J§  356-357  JURIES.  972 

favor,  the  question  before  bim  being  in  the  main  one 
of  fact  which  he  has  the  benefit  of  seeing  the  liearing 
and  appearance  of  a  juror,  shoukl  not  be  set  aside 
by  an  appellate  court  except  for  manifest  error  (Press 
Pub.  Co.  V.  McDonald,  38  U.  S.  App.  557;  73  Fed. 
Rep.  440). 

§  356.  Challenges  in  summary  trials. — At  the 
trial  in  summary  cases,  if  by  jury,  the  United 
States  and  the  accused  shall  each  he  entitled  to 
three  peremptory  challenges.  Challenges  for 
cause  in  such  cases  shall  be  tried  by  the  court 
without  the  aid  of  triers.     (Rev.  Stats,  sec.  4303.) 

§  357.  Grand  and  petit  jurors. — Xo  person 
shall  be  a  grand  or  petit  juror  in  any  court  of  the 
United  States,  upon  any  inquiry,  hearing  or  trial 
of  any  suit,  proceeding,  or  prosecution  based 
upon  or  arising  under  the  provisions  of  title  "Civil 
Rights"  and  of  title  "Crimes,"  for  enforcing  the 
provisions  of  the  Fourteenth  Amendment  to  the 
Constitution,  who  is,  in  the  judgment  of  the  court, 
in  complicity  with  any  combination  or  conspiracy 
in  said  titles  set  forth;  and  every  grand  and  petit 
juror  shall,  before  entering  upon  any  such  inquiry, 
hearing  or  trial,  take  and  subscribe  an  oath  in 
open  court,  that  he  has  never,  directly  or  indi- 
rectly, counseled,  advised,  or  voluntarily  aided  any 
such  combination  or  conspiracy.  (Rev.  Stats,  sec. 
822.) 

Note.— The  right  to  require  the  panel  to  s^rve  the 
term,  to  take  the  oath  on,  or  be  discharged  from 
the  panel,  is  limited  to  the  district  attorney.  (Atwood 
V.  Weems,  99  U.  S.  183.) 


973  JUKiES.  §  358 

§  358.  Rules  in  particular  States. — ALA- 
BAMA.— All  grand  and  petit  jurors  summoned 
for  service  in  each  division  shall  be  inhabitants 
thereof.    (23  U.  S.  Stats.  18.) 

ARKANSAS. — In  the  western  district  of  Ar- 
kansas such  number  of  jurors  shall  be  summoned 
at  every  term  of  the  district  court  thereof,  to  be 
held  at  Helena,  as  may  have  been  ordered  at  a 
previous  term,  "or  by  the  district  judge  in  vacation. 
And  a  grand  jury  may  be  summoned  to  attend  any 
such  term  when  ordered  by  the  court,  or  by  the 
judge  in  vacation.  In  case  of  a  deficiency  of  jur- 
ors, talesmen  may  be  summoned  by  order  of  the 
court.     (Eev.  Stats,  sec.  14.) 

COLORADO. — Whenever  the  terms  of  the  said 
circuit  and  district  courts  shall  be  held  at  the  same 
time  and  place,  grand  and  petit  jurors  summoned 
to  attend  in  either  of  said  courts  may  serve  in  the 
other  of  said  courts,  and  but  one  grand  or  petit 
jury  shall  be  summoned  to  attend  on  said  courts 
at  one  and  the  same  time;  but  this  provision  shall 
not  prevent  either  of  said  courts  from  procuring 
the  attendance  of  several  panels  of  jurors  succes- 
sively, as  the  business  of  the  courts  may  require. 
(Approved,  April  20,  1880,  sec.  2;  21  U.  S.  Stats. 
76;  1  Sup.  Rev.  Stats.  517.)  Jurors  in  the  dis- 
trict and  circuit  courts  of  the  United  States  in  and 
for  the  State  of  Colorado  shall  be  entitled  to  re- 
ceive fifteen  cents  for  each  mile  actually  traveled 
in  coming  to  or  returning  from  said  courts.  (Ap- 
proved, June  16,  1880;  21  U.  S.  Stats.  290.) 

Fed.  Proc— 82. 


§  358  JURIES.  974 

GEOEGIA. — All  grand  and  petit  jurors  sum- 
moned for  service  in  each  division  shall  be  resi- 
dents of  such  division.  All  mesne  and  final  pro- 
cess, subject  to  the  provisions  hereinbefore  con- 
tained, issued  in  either  of  said  divisions,  may  be 
served  and  executed  in  either  or  both  of  the  divi- 
sions. (21  U.  S.  Stats.  63;  1  Sup.  Eev.  Stats.  508; 
25  U.  S.  Stats.'  671,  sec.  6.) 

IDAHO. — Only  one  grand  jury  and  one  petit 
jury  shall  be  summoned  in  both  said  circuit  and 
district  courts.  (Approved,  July  3,  1890;  26  U.  S. 
Stats.  217.) 

KENTUCKY  AND  INDIANA.— In  the  several 
districts  of  Kentucky  and  Indiana,  such  number 
of  jurors  shall  be  summoned  by  the  marshal  at 
every  term  of  the'  circuit  and  district  courts,  re- 
spectively, as  may  have  been  ordered  of  record  at 
the  previous  term;  and  in  case  there  is  not  a  suffi- 
cient number  of  jurors  in  attendance  at  any  time, 
the  court  may  order  such  number  to  be  sum- 
moned as,  in  its  judgment,  may  be  necessary  to 
transact  the  business  of  the  court.  And  a  grand 
jury  may  be  summoned  to  attend  every  term  of 
the  circuit  or  district  court  by  order  of  the  court. 
The  marshal  may  summon  juries  and  talesmen  in 
case  of  a  deficiency,  pursuant  to  an  order  of  the 
court  made  during  the  term,  and  they  shall  serve 
for  such  time  as  the  court  may  direct.  (Eev.  Stats. 
sec.  815.) 

LOUISIANA. — All  grand  and  petit  jurors  sum- 
moned for  service  in  each  division  shall  be  resi- 
dents of  such  division.    (25  U.  S.  Stats.  388,  438.) 


975  JURIES,  §  358 

MICHIGAN. — One  grand  and  one  petit  jury 
only  shall  be  summoned,  and  serve  in  both  said 
courts  at  each  term  thereof;  and  jurors  shall  be 
selected  and  drawn  from  the  division  of  the  said 
district  in  which  they  reside  and  in  which  the 
terms  of  the  said  circuit  and  district  courts  to 
which  thej^  are  summoned  are  held.  (20  U.  S. 
Stats.  175;  28  U.  S.  Stats.  68.) 

MINNESOTA. — A  grand  and  petit  jury  shall 
be  summoned  for  each  of  said  terms  (of  the  cir- 
cuit and  district  courts)  which  petit  jury  shall 
be  competent  to  sit  and  act  as  such  jury  in  either 
or  both  of  said  courts  at  such  terms;  provided, 
that  the  judge  of  the  district  court  may,  in  his 
discretion,  dispense  with  the  summoning  or  im- 
paneling of  more  than  one  grand  jury  in  each  year 
in  any  of  said  divisions.  (Approved,  April  29, 
1890;  26  U.  S.  Stats.  73,  sec.  6.) 

MISSISSIPPI. — Whenever  the  circuit  and  dis- 
trict courts  in  the  southern  district  of  Mississippi 
shall  be  held  at  the  same  time  and  place,  only 
one  grand  jury  and  the  necessary  number  of  petit 
jurors  shall  be  summoned  for  both  courts,  and 
they  shall  be  the  grand  and  petit  jurors  for  both 
said  courts.  (Approved,  April  4,  1888;  25  IT.  S. 
Stats.  78.)  All  grand  and  petit  jurors  summoned 
for  service  in  said  eastern  division  of  said  south- 
em  district  shall  be  residents  of  said  division.  (28 
TJ.  S.  Stats.  115.)  Juries  shall  be  summoned  for 
the  additional  courts  hereby  created  as  now  pro- 
vided by  law  for  the  summoning  of  juries  in  said 
northern  district.     (22  U.  S.  Stats.  101.) 


§  358  JURIES.  976 

MISSOUEI. — Juries  shall  be  summoned  for  the 
courts  hereby  created  [in  the  several  subdivisions 
of  the  districts],  as  now  provided  by  law  for  the 
summoning  of  juries  in  the  said  districts,  and  when- 
ever the  circuit  and  district  courts  in  either  of  said 
districts  or  divisions  shall  be  held  at  the  same  time 
and  place,  jurors  shall  not  be  summoned  for  each 
of  said  courts,  but  for  both  said  courts,  and  they 
shall  act  accordingly  as  grand  and  petit  jurors  for 
both  said  courts.  (Approved,  May  14,  1890;  24 
U.  S.  Stats.  424;  26  U.  S.  Stats.  106,  sec.  3.) 

NEW  YOEK. — Xo  jury  shall  be  drawn  for  ser- 
vice exclusively  in  the  circuit  court  for  the  north- 
ern district  of  New  York  at  the  terms  thereof  re- 
quired by  law  to  be  held  at  Albany  and  Syracuse, 
or  at  the  adjourned  term  thereof  required  by  law  to 
be  held  at  TJtica,  if  a  jury  is  drawn  to  serve  in  the 
district  court  held  at  the  same  time  and  places 
with  said  terms  and  adjourned  term,  but  it  shall 
be  used  for  the  trial  of  issues  of  fact  arising  in  civil 
and  criminal  causes  in  said  circuit  court;  and  the 
verdicts  of  said  jury  and  all  proceedings  upon  the 
trial  of  said  issues  shall  be  of  the  same  effect  as  if 
the  said  jury  had  been  drawn  to  serve  in  the  said 
circuit  court.  (Approved  March  23,  1882;  Rev. 
Stats,  sec.  806,  repealing  the  original  section  806 
of  the  Rev.  Stats.;  United  States  v.  Rose,  6  Fed. 
Rep.  137.) 

NORTH  CAROLINA.— The  circuit  and  dis- 
trict courts  for  either  of  the  districts  of  North 
Carolina  may  order  a  grand  or  petit  jury,  or  both, 
to  attend  any  special  term  thereof,  by  an  order  to 


977  JURIES.  §  358 

be  entered  of  record  thirty  days  before  the  day  on 
which  such  special  term  is  appointed  to  convene. 
(Eev.  Stats,  sec.  816.) 

NOETH  DAKOTA.— When  the  circuit  court 
and  district  court  is  held,  as  provided  in  this  act, 
at  the  same  time  and  place,  one  grand  and  one 
petit  jury  only  shall  be  summoned  and  serve  in 
both  said  courts.     (26  U.  S.  Stats.  14.) 

OHIO. — One  grand  jury  and  one  petit  jury  only 
shall  be  summoned  and  serve  in  both  of  said  courts 
at  each  term  thereof.     (20  U.  S.  Stats.  101.) 

Northern  and  Southern  Districts. — All  grand 
and  petit  jurors  summoned  for  service  in  each 
division  shall  be  residents  of  such  division.  All 
mesne  and  final  process,  subject  to  the  provisions 
hereinbefore  contained,  issued  in  either  of  said 
divisions,  may  be  served  and  executed  in  either 
or  both  of  the  divisions.  (20  U.  S.  Stats.  101;  1 
Sup.  Eev.  Stats.  339;  21  U.  S.  Stats.  64;  1  Sup. 
Eev.  Stats.  509.) 

SOUTH  CAEOLINA.— The  grand  and  petit 
juries  for  the  district  court  sitting  in  the  western 
district  of  South  Carolina  shall  be  drawn  from  the 
inhabitants  of  said  district  who  are  liable,  accord- 
ing to  the  laws  of  said  State,  to  do  jury  duty  in  the 
courts  thereof;  and  all  jurors  shall  be  drawn  dur- 
ing the  sitting  of  the  court  for  the  next  succeeding 
term.     (Eev.  Stats,  sec.  817.) 

SOUTH  DAKOTA.— When  the  circuit  court 
and  district  court  are  held,  as  provided  in  this  act, 
at  the  same  time  and  place,  one  grand  and  petit 
jury  only  shall  be  summoned  and  serve  in  both 


§  358  JURIES.  978 

said,  courts,  and  all  grand  and  petit  juries  for  the 
circuit  and  district  courts  shall  be  drawn  by  the 
clerk  of  the  circuit  court,  and  all  grand  and  petit 
jurors  summoned  for  service  in  each  division  shall 
be  residents  of  such  division.     (28  U.  S.  Stats.  6.) 

TENNESSEE.— All  grand  and  petit  jurors 
summoned  for  service  in  each  division  shall  be  resi- 
dents of  such  division.  All  mesne  and  final  pro- 
cess subject  to  the  provisions  hereinbefore  con- 
tained, issued  in  either  of  said  divisions,  may  be 
served  and  executed  in  either  or  both  of  the  divis- 
ions.    (31  U.  S.  Stats.  175.) 

UTAH. — Only  one  grand  jury  and  one  petit 
jury  shall  be  summoned  in  both  of  said  courts. 
(38' U.  S.  Stats.  111.) 

VEKMONT.— The  clerk  of  the  district  court 
for  Vermont  shall  not  cause  a  petit  jury  to  be  sum- 
moned or  returned  to  any  session  in  which  there 
shall  appear  to  be  no  issue  proper  for  trial  by  jury, 
unless  by  special  order  of  the  judge.  (Eev.  Stats, 
sec.  807.) 

In  the  district  of  Vermont,  it  shall  be  the  duty 
of  the  circuit  court,  at  its  regular  sessions,  to  give 
in  charge  to  the  grand  juries  all  crimes,  offenses, 
and  misdemeanors  which  are  cognizable  as  well  in 
the  district  court  thereof  as  in  the  said  circuit 
court.     (Eev.  Stats,  sec.  818.) 


979  HABKA8  COBPUS.  §  359 


CHAPTER  XVIII. 

HABEAS    C0KPU8. 

§  359.  Power  to  issue. 

§  360.  Power  of  judges  to  grant. 

§  3G1.  When  prisoner  is  in  jail. 

§  3G2.  Application  for  the  writ. 

§  363.  Allowance  and  direction  of  the  writ. 

§  364.  Time  of  return. 

§  365.  Form  of  return. 

§  366.  Body  of  the  party  to  be  produced. 

§  367.  Day  for  hearing. 

§  368.  Denial  of  return. 

§  369.  Summary  hearing— Disposition  of  party. 

§  370.  In  cases  involving  the  law  of  nations. 

§  371.  Appeals  to  circuit  court. 

§  372.  Appeal  to  supreme  court. 

§  373.  Appeals,  how  taken. 

§  374.  Pending  proceedings— Action  by  state  author- 
ity. 

§  359.  Power  to  issue. — The  supreme  court 
and  the  circuit  and  district  courts  shall  have  power 
to  issue  writs  of  habeas  corpus.  (Eev.  Stats,  sec. 
751.) 

Nature  of  proceeding  in  habeas  corpus. — A  pro- 
ceeding in  habeas  corpus  is  a  civil  and  not  a  criminal 
proceeding  (Cross  v.  Burke,  146  U.  S.  82). 

Power  to  issue.— This  section  vests  the  power  to 
issue  the  writ  of  habeas  corpus  in  all  the  courts  of  the 
United  States,  and  the  next  section  vests  it  in  every 
justice  or  judge  of   the   United   States.     (Ex  parte 


§  359  HABEAS  CORPUS.  9S0 

Bollman,  4  Cranch.  75;  Ex  parte  Milligan,  4  Wall. 
2.)  It  may  issue  from  the  supreme  court  to  release 
one  imprisoned  under  sentence  of  an  inferior  Fed- 
eral court  (U.  S.  V.  Hamilton,  3  Dall.  17;  Ex  parte 
Burford,  3  Cranch,  448;  Ex  parte  Siebold,  100  U.  S. 
371;  Ex  parte  Lange,  18  Wall.  163;  Ex  parte  Yerger, 
8  Wall.  85;  Ex  parte  McCardle,  7  Wall.  506;  S.  C. 

6  Wall.  318);  as  where  a  person  is  arrested  on  a 
bench-warrant  (Ex  parte  Virginia.  100  U.  S.  339;  U.  S. 
V.  Hamilton,  3  DaJl.  17),  although  tlie  commitment  was 
made  by  a  court  having  power  to  commit.  (Ex  parte 
Bollman, 4  Cranch, 75;  Ex  parte  Burford, 3  Cranch, -148; 
U.  S.  V.  Hamilton,  3  Dall.  17.)  It  will  issue  whenever 
it  is  an  exercise  of  appellate  jurisdiction.  (Ex  parte 
Virginia,  100  U.  S.  339;  Ex  parte  Yerger,  8  Wall.  85.) 
It  can  only  issue  when  it  is  necessary  for  the  exercise 
of  its  jurisdiction.  (Ex  parte  Barry,  2  How.  G5;  Ex 
parte  Milburn,  9  Peters,  704;  Ex  parte Vallandigham.l 
Wall.  243.)  So  it  may  issue  to  determine  whether  the 
detention  of  a  prisoner  is  lawful  (Ex  parte  Watliins, 

7  Peters,  568),  and  it  may  revise  the  proceedings, 
no  matter  in  what  custody  the  prisoner  may  be  (Ex 
parte  Yerger,  8  Wall.  85);  but  the  supreme  court  has 
no  power  to  award  the  writ  to  inquire  into  the  valid- 
ity of  a  commitment  made  by  a  judge  at  chambers. 
(Ex  parte  Metzger,  5  How.  176.)  An  alien  cannot 
obtain  the  writ  in  the  supreme  court  (Ex  parte  Barry, 
2  How.  65);  and  whether  the  writ  will  issue  to  release 
one  held  under  sentence  of  a  court-martial,  quaere. 
(Ex  parte  Mason,  105  U.  S.  696.)  In  what  cases  the 
Federal  courts  have  power  to  issue  writ  of  habeas 
corpus,  see  Ex  parte  Koyal,  117  U.  S.  241;  Ex  parte 
Crouch,  112  U.  S.  178;  In  re  Ah  Jow,  29  Fed.  Rep 
181;  Ex  parte  Perliins,  29  Fed.  Rep.  900;  Wilden 
bus's  Case,  120  U.  S.  1;  Ex  parte  Davis,  21  Fed 
Rep.  390;  Ex  parte  Mirzan,  119  U.  S.  584;  Re  Neagle, 
39  Fed.  Rep.  833;  40  Alb.  L.  J.  284;  Medley,  Petl 


981  HABEAS  CORPUS,  §  359 

tioner,  134  U.  S.  160;  Savage,  Petitioner,  134  U.  S. 
176. 

Power  of  supreme  court  to  issue  writ. — Except  in 
cases  affecting  ambassadors,  or  other  public  minis- 
ters or  consuls,  it  can  issue  the  writ  only  in  aid  of  its 
appellate  jurisdiction.  (Ex  parte  Hung  Hang,  108 
U.  S.  552.)  The  power  of  this  court  is  expressly  con- 
ferred by  statute,  and  extends  to  the  cases,  among 
others,  of  prisoners  in  jail  under  or  by  color  of  the 
authority  of  the  United  States,  and  of  persons  who 
are  in  custody  in  violation  of  the  Constitution  or  laws 
of  the  United  States.  (Rev.  Stats.,  sees.  751,  752, 
753;  Re  Terry,  128  U.  S.  289.)  The  writ  will  not 
issue  out  of  this  court  where  it  may  as  well  issue 
from  the  proper  circuit  court  where  no  special  cir- 
cumstances make  it  necessary  or  expedient.  (Re 
Huntington,  137  U.  S.  63.  See  Ex  parte  Mirzan,  119 
U.  S.  584.)  The  supreme  court  will  inquire  as  to  the 
jurisdiction  of  an  inferior  court,  as  to  the  subject- 
matter  or  the  person,  even  if  the  inquiry  involves 
facts  outside  of  the  record,  if  not  inconsistent  there- 
with. (Re  Mayfield,  141  U.  S.  107;  Ex  parte  Yerger, 
8  Wall.  85;  Ex  parte  Virginia,  100  U.  S.  339;  Ex  parte 
Carll.  106  U.  S.  521;  Ex  parte  Yarbrough,  110  U.  S. 
651;  Ex  parte  Bigelow,  113  U.  S.  328;  Re  Nielsen, 
131  U.  S.  176;  Re  Savin,  131  U.  S.  267;  Re  Cuddy, 
131  U.  S.  280.)  The  supreme  court  cannot  discharge 
a  person  imprisoned  under  sentence  of  a  territorial 
court,  unless  the  sentence  exceeds  the  jurisdiction. 
<Re  Harding,  120  U.  S.  782.)  The  jurisdiction  of  this 
court  to  review  the  judgments  of  the  inferior  courts 
of  the  United  States  in  criminal  cases,  by  habeas 
corpus,  is  limited  to  the  question  of  the  power  of  the 
court  to  try  or  to  commit  the  prisoner  for  the  act 
of  which  he  has  been  convicted.  (Ex  parte  Curtis, 
106  U.  S.  371:  Ex  parte  Reed,  100  U.  S.  13;  Ex  parte 
Virginia,  100  U.  S.  339;  Ex  parte  Carll,  106  U.  S.  521.) 


§  359  HABEAS  coRprs.  982 

If  any  inferior  court  of  tlie  United  States  has  juris- 
diction, a  superior  court  of  the  United  States  will  not 
interfere  by  liabeas  corpus  (Horner  v.  United  States, 
143  U.  S.  570). 

From  the  Federal  courts. — The  Federal  courts  are 
vested  with  power  to  issue  the  Avrit  (In  re  Turner,  1 
Abb.  U.  S.  84,  Fed.  Cas.  No.  14247;  Bennett  v.  Ben- 
nett, Deady,  300,  Fed.  Cas.  No.  1318;  Ex  parte  Des 
Rothers,  McAll.  68,  Fed.  Cas.  No.  3824;  Ex  parte 
Smith,  3  McLean,  121,  Fed.  Cas.  No.  12968;  U.  S. 
V.  Williamson,  4  Am.  Law.  Ueg.  5,  Fed.  Cas.  No. 
1G72G),  as  in  extradition  cases  (Ex  parte  Kaine,  3 
Blatchf.  1,  Fed.  Cas.  No.  7597;  In  re  Stupp,  12  Blatchf. 
501,  Fed.  Cas.  No.  135G3;  Ex  parte  McKean.  3  Hughes, 
23,  Fed.  Cas.  No.  8848.)  It  may  be  issued  to  release 
a  party  from  imprisonment  uuder  sentence  of  a 
court-martial  (Meade  v.  Deputy  Marshal,  1  Brock. 
324,  Fed.  Cas.  No.  9372).  or  to  inciuire  into  the  validity 
of  an  eulistment  into  the  military  service  (Ex  pai'te 
Schmeid,  1  Dill.  587,  Fed.  Cas.  No.  12461;  In  re  Mc- 
Donald, 1  Low,  100,  Fed.  Cas.  No.  8752;  In  re  Keeler. 
Hemp.  306,  Fed.  Cas.  No.  7637;  U.  S.  v.  Anderson. 
Cooke,  143).  It  may  issue  although  the  party  is  not 
in  jail  and  there  has  been  no  formal  commitment 
(In  re  McDonald,  1  Low,  100,  Fed.  Cas.  No.  8752).  or 
although  he  is  arrested  under  civil  process  (Ex  parte 
Keardou,  2  Cranch,  C.  C.  639.  Fed.  Cas.  No.  11615;  Ex 
parte  Randolph.  2  Brock,  447,  Fed.  Cas.  No.  11558; 
In  re  Snow,  3  Wood  &  M.  430,  Fed.  Cas.  No.  13143; 
see  Ex  parte  Wilson,  6  Cranch,  52;  Wilson  v.  Mar- 
shal, 1  Cranch,  C.  C.  608,  Fed.  Cas.  No.  17822.  It 
may  issue  where  a  prisoner  is  uuder  conviction  and 
sentence  as  well  as  under  commitment  (In  re  Great- 
house,  4  Sawy.  487,  2  Abb.  U.  S.  382,  Fed.  Cas.  No. 
5741).  Where  there  can  be  no  inquiry  whether  the 
charge  constitutes  an  offense  until  the  meeting  of 
the   grand   jury,    and    no    relief   from    imprisonment 


y«3  HABEAS  CORPUS.  §  359 

meautime,  a  writ  of  habeas  corpus  is  proper  (In  re 
Barber,  75  Fed.  Rep.  980).  Federal  courts  have  juris- 
diction upon  a  writ  of  habeas  corpus  to  inquire  into 
the  cause  of  the  imprisonment  of  the  petitioner,  and 
if,  upon  such  inquiry,  he  is  found  to  be  "in  custody 
for  an  act  done  or  omitted  in  pursuance  of  a  law  of 
the  United  States,"  he  is  entitled  to  be  discharged, 
no  matter  from  whom  or  under  what  authority  the 
process  under  which  he  is  held  may  have  issued.  (Re 
Neagle,  39  Fed.  Rep.  833;  In  re  Ilultman,  70  Fed. 
Rep.  699).  The  boundaries  of  a  State  cannot  be  de- 
termined on  habeas  corpus  (In  re  Chavez,  72  Fed. 
Rep.  lOOf)).  Habeas  corpus  may  be  issued  where  a 
Chinaman  is  held  in  custody  on  a  vessel  in  the  port 
of  San  Francisco,  and  not  permitted  to  enter  the 
United  States.  (United  States  v.  Jung  Ah  Lung,  124 
U.  S.  621;  overruling  Re  Cummings,  32  Fed.  Rep.  75.) 
A  Feaeral  court  has  jurisdiction  to  issue  a  writ  of 
habeas  corpus  to  determine  whether  an  Indian  ar- 
rested for  violation  of  State  game  laws  is  properly 
restrained  where  the  act  done  was  permitted  by  a 
treaty  between  the  United  States  and  the  tribe,  in 
force  before  the  admission  of  the  state.  (In  re  Race 
Horse,  70  Fed.  Rep.  598.)  A  person  imprisoned  by 
local  authorities,  contrary  to  a  treaty,  for  an  offense 
on  board  a  foreign  vessel  in  a  United  States  port, 
may  enforce  his  rights  under  the  treaty  by  writ  of 
habeas  corpus,  in  any  proper  court  of  the  United 
States.  (Mali  v.  Keeper  of  Common  .Tail,  120  U.  S.  1.) 
It  is  only  in  exceptional  and  urgent  cases  that  the 
Federal  courts  will  interpose  by  the  writ  of  habeas 
corpus  to  discharge  prisoners  held  in  custody  under 
State  authority  (State  of  New  York  v.  Eno,  155  U.  S. 
89.;  Cook  v.  Hart,  146  U.  S.  183;  Bergemann  v.  Backer, 
157  U.  S.  655;  Whitten  v.  Tomlinson,  IGO  U.  S.  231; 
Baker  v.  Grice,  169  U.  S.  284;  In  re  Nelson,  69  Fed. 
Rep.  712;  In  re  Huse,  48  U.  S.  App.  318;  79  Fed.  Rep. 


§  359  HABEAS  COBPUS.  984 

305;  In  re  Murphy,  87  Fed.  Rep.  549;  In  re  Moore, 
75  Fed.  Rep.  821;  In  re  Krug,  79  Fed.  Rep.  308;  In  re 
May,  82  Fed.  Rep.  422;  In  re  Alexander,  84  Fed.  Rep. 
633;  In  re  Flinu,  57  Fed.  Rep.  496;  In  re  MeKnigbt, 
52  Fed.  Rep.  799;  In  re  Lawrence,  80  Fed.  Rep.  99; 
Ex  parte  Whitten,  67  Fed.  Rep.  230).  Yet  the  Federal 
court  has  the  power  to  issue  a  writ  in  such  cases  if 
special  cii'cumstances  should  require  (In  re  Grice,  79 
Fed.  Rep.  627;  Baker  v.  Grice,  169  U.  S.  284;  lasigi 
V.  Van  De  Carr,  166  U.  S.  391;  Kelly  v.  State  of  Geor- 
gia, 68  P^ed.  Rep.  652;  Ex  parte  Jersey,  66  Fed.  Rep. 
957).  The  matter  is  within  the  discretion  of  the  court 
whether  to  issue  the  writ  or  to  put  the  prisoner  to  his 
writ  of  error  to  the  highest  State  court  (In  re  King, 
51  Fed.  Rep.  434;  In  re  Bennett.  84  Fed.  Rep.  324). 
The  refusal  of  a  State  court  to  grant  a  writ  of  error 
to  a  person  convicted  of  murder  will  not  itself  war- 
rant a  court  of  the  United  States  in  issuing  a  writ  of 
habeas  corpus  (Kohl  v.  Lehlback,  IGO  U.  S.  293;  Berge- 
man  v.  Backer,  157  U.  S.  655).  Habeas  corpus  may  is- 
sue for  the  purpose  of  inquiring  whether  acts  done 
by  a  person  while  in  the  service  of  the  United  States 
were  done  wantonly  and  with  a  criminal  intent,  such 
person  being  in  custody,  after  preliminary  examina- 
tion in  the  State  court  (In  re  Lewis,  83  Fed.  Rep. 
159). 

Not  granted  for  mere  correction  of  errors. — The 
writ  will  not  issue  to  correct  errors  where  they  may 
be  corrected  by  appeal  to  the  State  supreme  court. 
(In  re  Duncan,  139  U.  S.  449;  Sternaman  v.  Peck,  80 
Fed.  Rep.  883;  In  re  King,  51  Fed.  Rep.  434;  In  re  Al- 
bert Frederich,  149  U.  S.  70;  In  re  M.V.Tyler,  149  U.S. 
164;  In  re  Swan,  150  U.  S.  637;  Re  Chapman,  156  U.  S. 
211;  In  re  Debs.  158  U.  S.  564;  In  re  Belt,  159  U.  S. 
95;  Gonzales  v.  Cunningham,  164  U.  S.  612;  Ex  parte 
Lennon,  166  U.  S.  TAS.)  It  will  not  be  granted  to  re- 
lease one  convicted  of    selling    intoxicating  liquors, 


985 


HABEAS  COBPXJS.  §  359 


where  an  appeal  was  the  proper  remedy.  (Allen  v. 
Black,  43  Fed.  Rep.  228.)  Where  a  United  States 
commissioner  has  jurisdiction  of  the  subject-matter 
and  of  the  person,  irregularities  in  the  proceedings 
before  him  are  not  reviewable  on  habeas  corpus  by 
the  circuit  court.  (Stevens  v.  Fuller,  136  U.  S.  468; 
Ex  parte  Ricljelt,  Gl  Fed.  Rep.  203.)  The  including 
in  one  indictment  and  sentence  of  illegal  voting,  both 
for  a  representative  in  Congress  and  for  presidential 
electors,  does  not  go  to  the  jurisdiction  of  the  State 
court,  but  is,  at  the  worst,  mere  error,  which  cannot 
be  inquired  into  by  writ  of  habeas  corpus.  (Ex  parte 
Crouch,  112  U.  S.  178;  In  re  Coy,  127  U.  S.  756-759; 
In  re  Green,  134  U.  S.  377.)  Errors  of  law  committed 
by  the  court  that  passed  the  sentence  cannot  be  re- 
viewed here  on  habeas  corpus.  (Ex  parte  Yarbrough, 
110  U.  S.  651;  Ex  parte  Watldns,  3  Pet.  193;  Ex  parte 
Carll,  106  U.  S.  621;  Re  Albert  Frederich,  149  U.  S. 
70;  Kohl  V.  Lehlback,  160  U.  S.  293.)  Errors  com- 
mitted in  a  criminal  case  by  a  State  court  of  compe- 
tent jurisdiction,  while  proceeding  under  statutes  that 
do  not  conflict  with  U.  S.  Const.,  cannot  be  reached 
by  habeas  corpus  in  a  Federal  court.  (In  re  Shibuya 
Jugiro,  140  U.  S.  291;  35  L.  ed.  510;  In  re  Wood,  140 
U.  S.  278,  370;  35  L.  ed.  505;  Andrews  v.  Swartz,  156 
U.  S.  272;  In  re  Maldonado,  63  Fed.  Rep.  825.)  Ir- 
regularities in  the  conduct  of  a  case  do  not  affect  the 
final  order  so  as  to  render  it  reviewable  on  habeas 
corpus.  (Re  Savin,  131  U.  S.  267.)  A  writ  of  habeas 
corpus  will  be  granted  where  a  writ  of  error  or  ap- 
peal will  not  lie  in  a  case  where  a  petitioner  is  im- 
prisoned under  a  judgment  of  the  circuit  court  having 
no  jurisdiction  (In  re  Swan,  150  U.  S.  637).  The 
action  of  the  court  in  consolidating  indictments  is 
not  open  to  attack  upon  a  habeas  corpus  proceeding 
(Howard  v.  United  States,  43  U.  S.  App.  678;  75  Fed. 
Rep.  986). 

Fed.  Proc— 83, 


§  359  HABEAS  COKPUS.  986 

When  writ  will  be  denied.— This  court  will  deny 
the  writ  in  cases  where  it  may  as  well  issue  from  the 
circuit  court  unless  circumstances  malie  action  by  this 
court  necessary  or  expedient.  (Re  Huntington,  137 
U.  S.  63;  Ex  parte  Mirzan,  119  U.  S.  584.)  Federal 
courts  cannot,  by  habeas  corpus,  obstruct  the  ordi- 
nary administration  of  criminal  laws  of  the  States 
through  their  own  tribunals.  (In  re  Wood,  140  U.  S. 
278,  370.)  The  writ  need  not  be  awarded  if  it  appear, 
upon  the  showing  made  by  the  petitioner,  that  if 
brought  into  court,  and  the  cause  of  his  commitment 
inquired  into,  he  would  be  remanded  to  prison.  (Ex 
parte  Kearney,  7  Wheat.  38,  45;  Ex  parte  Watkins, 
3  Pet.  193,  201;  Ex  parte  Milligan,  4  W^all.  2,  11;  Re 
Terry,  128  U.  S.  289;  Ex  parte  King,  51  Fed.  Rep. 
434;  Re  Boardman,  1G9  U.  S.  39.)  A  Federal  court 
may  refuse  the  writ  to  one  arrested  for  violation 
of  an  unconstitutional  statute  where  he  might  have 
set  this  up  in  defense  to  the  action  against  him.  (U. 
S.  V.  Fiscus,  42  Fed.  Rep.  395.)  It  will  be  refused 
where  the  same  question  has  been  decided  against 
the  petitioner  by  another  judge  of  the  same  court, 
in  a  cause  then  on  trial  in  the  court.  (Re  Simmons, 
45  Fed.  Rep.  241.)  It  will  be  refused  where  the  stat- 
utes of  a  State  regulating  the  selection  of  jurors  do 
not  conflict  with  the  Federal  constitution.  The  rem- 
edy for  the  wrong  done  by  discriminations  is  not  by 
writ  of  habeas  corpus.  If,  in  any  case,  the  criminal 
laws  are  administered  by  the  State  court  so  as  to 
discriminate  against  an  accused  person  because  of  his 
race,  the  remedy  for  the  wrong  done  to  him  is  not  by 
a  writ  of  habeas  corpus  from  a  court  of  the  United 
States.  (In  re  Shibuya  Jugiro,  140  U.  S.  291;  35 
L.  ed.  510;  In  re  Wood,  140  U.  S.  278,  370.)  So 
refusal  to  admit  a  person  to  bail  pending  a  review 
of  his  conviction  by  the  supreme  court  of  the  State 
is  not  a  ground  for  a  writ  of  habeas  corpus  from  a 


987  HABEAS  CORPUS.  §  360 

Federal  court  (Re  Humason,  46  Fed.  Rep.  388.)  The 
United  States  district  court,  or  a  judge  thereof,  has 
no  jurisdiction  to  issue  a  writ  of  habeas  corpus  to 
recover  the  custody  of  a  child  withheld  from  its 
parent;  nor  to  order  the  delivery  of  the  child  to  its 
parent;  nor  to  imprison  for  contempt  for  the  disobe- 
dience of  that  order.  In  such  cases  they  cannot  take 
jurisdiction  on  the  ground  of  diverse  citizenship. 
(Re  Burrus,  136  U.  S.  586.)  The  United  States  circuit 
court  may  properly  decline  to  interfere  by  habeas  cor- 
pus to  discharge  one  convicted  or  murder  in  a  State 
court  which  had  jurisdiction  of  the  person  and  of- 
fense, and  whose  errors,  if  any,  may  be  corrected  by 
appeal  to  the  State  court  of  appeals.  (Ex  parte 
Royall,  117  U.  S.  241;  Ex  parte  Fonda,  117  U.  S.  516; 
cited  in  In  re  Duncan,  139  U.  S.  449.)  The  writ  will 
not  issue  where  a  prisoner  is  held  to  answer  an  indict- 
ment unless  it  appears  that  the  facts  of  the  case  can- 
not under  any  possible  statement  of  them  constitute 
a  crime,  or  where  an  early  hearing  is  necessary  (In 
re  Hacker,  73  Fed.  Rep.  464). 

§  360.  Power  of  judges  to  grant. — The  several 
justices  and  judges  of  the  said  courts,  within  their 
respective  jurisdictions,  shall  have  power  to  grant 
writs  of  habeas  corpus  for  the  purpose  of  an  in- 
quiry into  the  cause  of  restraint  of  liberty.  (Rev. 
Stats,  sec.  752.) 

A  justice  of  the  supreme  court  may  issue  the  writ 
(Ex  parte  Clarke,  100  U.  S.  399);  and  if  he  issues  it 
at  chambers,  he  cannot  then  adjourn  the  proceeding 
to  the  supreme  court  for  hearing.  (Ex  parte  Kaine, 
14  How.  103.)  If  issued  from  the  coiu't,  it  cannot 
be  made  returnable  before  a  judge  at  chambers.  (Ex 
parte  Kaine,  14  How.  103.)  Federal  judges  should 
grant  writs  of  habeas  corpus  to  persons  for  acts  done 


§  3S1  HABEAS  CORPUS.  988 

in  pursuance  of  a  law  of  the  United  States.     (Cun« 
ningliam  v.  Neagle,  135  U.  S.  1.) 

§  361.  When  prisoner  is  in  jail. — The  writ  of 
habeas  corpus  shall  in  no  case  extend  to  a  prisoner 
in  jail,  unless  where  he  is  in  custody  under  or  by 
color  of  the  authority  of  the  United  States,  or  is 
committed  for  trial  before  some  court  thereof;  or  is 
in  custody  for  an  act  done  or  omitted  in  pursuance 
of  a  law  of  the  United  States,  or  of  an  order,  pro- 
cess, or  decree  of  a  court  or  judge  thereof;  or  is  in 
custody  in  violation  of  the  constitution  or  of  a  law 
or  treaty  of  the  United  States;  or,  being  a  subject 
or  citizen  of  a  foreign  State,  and  domiciled  therein, 
is  in  custody  for  an  act  done  or  omitted  under  any 
alleged  right,  title,  authority,  privilege,  protection, 
or  exemption  claimed  under  the  commission,  or 
order,  or  sanction  of  any  foreign  State,  or  under 
color  thereof,  the  validity  and  effect  whereof 
depend  upon  the  law  of  nations;  or  unless  it  is 
necessary  to  bring  the  prisoner  into  court  to  tes- 
tify.    (Eev.  Stats,  sec.  753.) 

Prisoner  in  custody. — The  prisoner  is  entitled  to 
his  discharge  from  the  custody  of  the  warden  of  the 
penitentiary  under  the  order  and  judgment  of  the 
court,  within  the  language  of  this  section,  when  he  is 
in  custod.v  in  violation  of  the  Constitution  of  the 
United  Slates.  (Ex  parte  jNIedley.  134  U.  S.  IGO.)  Im- 
prisonment of  an  absconding  debtor  in  jail  on  body 
executions  and  writs  of  attachment  in  civil  actions 
will  not  defeat  the  power  of  a  circuit  court  of  the 
United  States  to  issue  a  writ  of  habeas  corpus  in  aid 
of  extradition  proceedings,  notwithstanding  the  pro- 
visions of  this  section.  (In  re  Mineau.  45  Fed.  Rep. 
188.     See  Re  Cross.  13  Crim.  I..  Mag.  31;  In  re  Fitton, 


989  HABEAS  CORPUS.  §  361 

45  Fed.  Rep.  471.)  This  section  is  quoted  and  applied 
in  the  case  of  Cunningham  v.  Neagle,  135  U.  S.  1.) 
If  a  person  at  large  surrenders  himself  or  is  surren- 
dered by  his  sureties,  and  is  in  actual  confinement, 
the  writ  may  issue  and  the  court  will  not  consider 
an  objection  that  he  was  surrendered  by  collusion 
(In  re  Grice,  79  Fed.  Rep.  G27).  On  habeas  corpus 
to  release  a  person  held  under  a  warrant  of  a  U.  S. 
commissioner  to  await  an  order  of  a  district  judge  for 
his  removal  to  another  district  to  answer  an  indict- 
ment, the  circuit  court  should  examine  the  indictment 
to  ascertain  whether  it  charges  auy  offense,  or 
whether  the  court  in  which  the  indictment  is  pend- 
ing has  jurisdiction  (In  re  Greene,  52  Fed.  Rep.  104; 
In  re  Terrell,  51  Fed.  Rep.  213).  An  immigrant  held 
in  custody  on  board  a  vessel  by  the  master  under 
the  directions  of  the  customs  authorities  is  in  custody 
imder  or  by  color  of  the  authority  of  the  United  States 
(United  States  v.  Chung  Shee,  71  Fed.  Rep.  277). 

Habeas  corpus — When  writ  will  issue. — The  writ 
cannot  issue  to  release  one  committed  under  State 
authority,  except  as  provided  in  this  section  (Ex  parte 
Dorr,  3  How.  103;  Ex  parte  McCann,  14  Am.  Law 
Reg.  158;  In  re  Veremaitre,  13  Law  Rep.  608;  Fed. 
Cas.  No.  10915;  Elkisou  v.  Deliesse'line,  1  Br.  Col. 
Cas.  431;  2  Wheel.  C.  C.  56;  Fed.  Cas.  No.  4366);  and 
it  must  be  made  to  appear  that  the  imprisonment 
is  for  an  act  done  in  pursuance  of  Federal  authority, 
an  re  Bull,  4  Dill.  323;  Fed.  Cas.  No.  2119.)  So  of  a 
Federal  court  officer  (In  re  Farrr^id,  1  Abb.  U.  S.  140 
Fed.  Cas.  No.  4678;  In  re  Neill,  8  Blatchf.  156;  Fed 
Cas.  No.  10089;  Ex  parte  Robinson,  1  Bond..  39;  Fed 
Cas.  No.  11934;  Ex  parte  Gift'ord,  5  Am.  Law  Reg 
659;  Ex  parte  Robinson,  6  McLean,  355;  Fed.  Cas 
No.  11935;  Ex  parte  Jenkins,  2  Wall.  J.  521;  Fed 
Cas.  No.  7259;  U.  S.  v.  Morris,  2  Am.  Law  Reg.  348); 
or  a  person  convicted  in  a  State  court  for  an  act  done 


§  361  HABEAS  CORPUS.  990 

by  him  while  in  the  military  service  of  the  United 
States  (Coleman  v.  Tennessee,  97  U.  S.  509);  or  a  dis- 
trict attorney  or  marshal  committed  for  contempt  for 
not  appearing  instanter  in  a  state  court  (Ex  parte 
Turner,  3  Woods,  603;  Fed.  Cas.  No.  14246);  or  a 
member  of  a  canvassing  board  at  an  election  at  which 
members  of  Congress  and  presidential  electors  are 
to  be  chosen  (Ex  parte  Hayne,  9  Chic.  L.  N.  106);  or 
a  supervisor  for  acts  done  in  discharge  of  his  duties 
(Ex  parte  Geissler,  4  Fed.  Rep.  188);  or  a  person  con- 
victed of  perjury  before  an  officer  of  the  United 
States  (Brown  v.  U.  S.,  2  Woods,  428;  Fed.  Cas.  No. 
1862:  Ex  parte  Bridges,  2  Woods,  428:  Fed.  Cas.  No. 
1862);  or  a  person  imprisoned  for  a  crime  committed 
under  the  exclusive  jurisdiction  of  the  United  States 
(Ex  parte  Tatem.  1  Hughes,  588;  Fed.  Cas.  No.  13759); 
or  a  person  convicted  for  the  violation  of  the  Consti- 
tution or  a  treaty  (In  re  Wong  Yung  Quy,  2  Fed.  Rep. 
624);  or  a  person  convicted  for  murder  committed 
while  executing  a  writ  issued  by  a  Federal  court  (U. 
S.  V.  Jailer,  2  Abb.  U.  S.  265;  Fed.  Cas.  No.  15463); 
or  a  person  imprisoned  under  a  State  law  that  is  un- 
constitutional (Ex  parte  McCready,  1  Hughes,  598; 
Fed.  Cas.  No.  8732);  or  an  agent  appointed  by  a  gov- 
ernor of  a  State  to  malie  demand  upon  the  governor 
of  another  State  for  a  fugitive  from  justice  (Ex  parte 
Titus,  8  Ben.  411;  Fed.  Cas.  No.  14062);  or  a  party 
held  under  a  warrant  to  await  the  requisition  of  the 
governor  (In  re  Hoyle,  12  Chic.  L.  N.  279;  Fed.  Cas. 
No.  6803);  or  a  party  sent  as  a  messenger  to  receive  a 
fugitive  from  justice.  (U.  S.  v.  McClay,  23  Int.  Rev. 
Rec.  80;  Fed.  Cas.  No.  15660.)  The  power  to  arrest  the 
arm  of  the  State  authorities  under  this  section  is  one 
of  delicacy,  and  should  be  exercised  only  when  justice 
demands  (Ex  parte  Thompson,  1  Flip.  507;  Fed.  Cas. 
No.  1.3934);  and  a  party  cannot  be  released  on  habeas 
corpus  who,  after  giving  bail  for  his  appearance  in  the 


991  HABEAS  COBPUS.  §  363 

Federal  court,  is  subsequently  arrested  on  a  criminal 
ctiarge.  (U.  S.  v.  French,  1  Gall.  1;  Fed.  Cas.  No. 
15165;  U.  S.  V.  Rector,  5  McLean,  174;  Fed.  Cas.  No. 
16132.)    See  note  to  section  359,  ante. 

§  362.  Application  for  the  writ. — Application 
for  writ  of  habeas  corpus  shall  be  made  to  the  court, 
or  justice,  or  judge  authorized  to  issue  the  same,  by 
complaint  in  writing,  signed  by  the  person  for 
whose  relief  it  is  intended,  setting  forth  the  facts 
concerning  the  detention  of  the  party  restrained, 
in  whose  custody  he  is  detained,  and  by  virtue  of 
what  claim  or  authority,  if  known.  The  facts  set 
forth  in  the  complaint  shall  be  verified  by  the  oath 
of  the  person  making  the  application.  (Eev. 
Stats,  sec.  754.) 

Application  for  writ.— If  a  party  applies  to  the 
supreme  court,  he  must  first  show  that  the  court  has 
jurisdiction  over  the  case.  (Ex  parte  Milburn,  9  Pe- 
ters, 704.)  The  writ  will  not  issue  as  a  matter  of 
course,  although  it  is  a  writ  of  right  (In  re  Keeler, 
Hemp,  sae;  Fed.  Cas.  No.  7637;  U.  S.  v.  Lawrence,  4 
Cranch  C.C.  518;  Fed.  Cas.  No.  15677);  but  when  prob- 
able ground  is  shown  tliat  the  party  is  in  custody 
without  just  cause,  it  will  be  granted.  (Ex  parte  Win- 
der, 2  Cliff.  89;  Fed.  Cas.  No.  17867.)  Before  it  will 
be  issued,  it  must  appear  that  the  party  is  detained 
against  his  will  without  authority,  and  is  entitled  to 
relief  (Ex  parte  Keeler,  Hemp.  306;  Fed.  Cas.  No. 
7637;  Ex  parte  Davis,  14  Law  Rep.  301;  Fed.  Cas. 
No.  3613.)  The  writ  may  be  issued  at  the  instance 
of  a  third  party,  who  has  no  other  interest  than  sym- 
pathy with  the  oppressed  (In  re  Hoyle,  9  Am.  Law 
Rec.  65;  Fed.  Cas.  No.  6803;  Ex  parte  Des  Rochers, 
McAll.  68;  Fed.  Cas.  No.  3824);  and  a  wife  may  apply 
for  a  writ.    (In  re  Ferrens,  3  Ben.  442;  Fed.  Cas.  No. 


§  362  HABEAS  CORPUS.  992 

4746.)    If  a  party  is  detained  under  a  commitment,  he 
must  produce  a  copy  thereof,  or  an  affidavit  that  the 
sheriff  refused  hiiu  a  copy.  (InreHarrison,  ICranch  0. 
C.  159;  Fed.  Cas.  No.  6181;  U.  S.  t.  Bollman,  1  Cranch 
C.    C.    373:    Fed.    Cas.    No.    14622.)      The   application 
must  be  supported  by  oath,  talien  before  one  of  whom 
judicial  notice  will  be  taken  as  qualified  to  admin- 
ister oaths.    (In  re  Keeler,  Hemp.  306;  Fed.  Cas.  No. 
7637.)     The  application  must  set  forth  the  facts  con- 
cerning the  detention,  in  whose  custody,  and  by  virtue 
of  what  claim.    (Re  Cuddy,  131  U.  S.  280.)    Where  the 
statement  in  the  application  is  denied,  it  cannot  be 
presumed  that  the  statement  is  true.    (Holden  v.  ^lin- 
nesota,  137  U.   S.  483.)     Upon  complaint  in  writing, 
signed  by  and  veritied  by  the  oath  of  the  person  for 
whose  relief  it  is  intended,   setting  forth  the  facts 
concerning  the  detention  of  the  party  resti*ained,  in 
whose  custody  he  is  detained,  and  by  virtue  of  what 
claim  or  authority,  if  known,  it  is  the  duty  of  the 
court  to  "forthwith  award  a  writ  of  habeas  corpus, 
unless  it  appears   from  the  petition  itself  that  the 
party  is  not  entitled  thereto."     (Rev.  Stats.,  sees.  754, 
755;  In  re  Terry,  128  U.  S.  289.)    A  petition  for  a  writ 
of  habeas  corpus  which  does  not  impeach  the  judg- 
ment or  original  mittimus,   directed  to  the  marshal 
under  which  petitioner   was  actually  committed,   is 
bad   (Howard  v.   United   States,    75   Fed.    Rep.   986). 
The  petition  must  show  the  nullity  of  the  judgment 
if  it  shows  that  the  court  was  competent  to  try  the 
offense,    or    the    petition    must    show    that    he    has 
served  the  sentence  pronounced  by  it  (In  re  Green- 
wald,  77  Fed.  Rep.  590).    Before  issuing  a  writ  to  in- 
terfere "with  the  execution  of  State  laws  the  court 
should  require  the  facts  to  be  set  out  in  the  applica- 
tion, so  that  the  court  can  see  that  there  is  a  projier 
case  to  be  investigated  in  this  manner  (In  re  Krug, 
79  Fed.  Rep.  308;  King  v.  McLean  Asylum,  21  U.  S. 


993  HABEAS  CORPUS.  §  363 

App.  407;  64  Fed.  Rep.  325).  No  allegation  of  fact 
in  a  petition  for  habeas  coi'pus  can  be  assumed  to 
be  admitted  unless  distinct  and  unambiguous  (Whit- 
tier  V.  Tomlinson,  KIO  U.  S.  406).  The  complaint  in 
habeas  corpus  alleging  invalidity  of  process  or  pro- 
ceedings under  which  the  party  is  held  in  custody 
must  set  out  copies  of  such  process  or  proceedings, 
or  the  essential  parts  thereof;  and  mere  averments 
of  conclusions  of  law  are  inadequate  (Craemer  v. 
State  of  Washington,  168  U.  S.  124). 

§  363.  Allowance  and  direction  of  the  writ.— 
The  court,  or  justice,  or  judge  to  whom  such  ap- 
plication is  made  shall  forthwith  award  a  writ  of 
habeas  corpus,  unless  it  appears  from  the  petition 
itself  that  the  party  is  not  entitled  thereto.  The 
writ  shall  he  directed  to  the  person  in  whose  cus- 
tody the  party  is  detained.     (Rev.  Stats,  sec.  755.) 

Writ,  when  issued.— Whether  the  writ  shall  issue 
or  not  depends  upon  the  facts  presented  in  the  peti- 
tion showing  a  cause  for  his  release  (Ex  parte  Kin- 
ney, 3  Hughes,  9;  Fed.  Cas.  No.  7825;  In  re  Haslvell, 
52  Fed.  Kep.  795);  and  the  truth  or  falsity  of  the  fact 
must  be  determined  at  the  hearing.  (Ex  parte 
Hayne,  9  Chic.  L.  N.  106.)  Instead  of  directing  the 
writ  to  issue  in  the  first  instance,  tlie  court  may  enter 
a  rule  to  show  cause.  (Ex  parte  Milburn,  9  Peters, 
704.)  If  the  petition  shows  that  the  prisoner  is  right- 
fully detained,  the  court  may  refuse  the  writ  (Ex 
parte  Watlvius,  3  Peters,  193;  United  States  v.  Law- 
rence, 4  Cranch.  C.  C.  518;  Fed.  Cas.  No.  15577:  Ex 
parte  Milligan,  4  Wall.  2);  and  if  the  commitment  is 
regular,  he  will  not  be  released  on  the  ground  that  he 
was  insane  when  he  committed  the  offense.  (United 
States  V.  Lawrence,  4  Cranch.  C.  0.  518;  Fed.  Cas.  No. 
15577.) 


§§  364-365  HABEAS  CORPUS.  994 

§  364.  Time  of  return. — Any  person  to  whom 
such  writ  is  directed  shall  make  due  return  thereof 
within  three  days  thereafter,  unless  the  party  be 
detained  beyond  the  distance  of  twenty  miles;  and 
if  beyond  that  distance,  and  not  beyond  a  distance 
of  a  hundred  miles,  within  ten  days;  and  if  beyond 
a  distance  of  a  hundred  miles,  within  twenty  days. 
(Rev.  Stats,  sec.  756.) 

Note.— If  the  party  to  whom  the  writ  is  directed 
fails  to  malie  return,  attachment  may  issue  without 
an  alias  or  pluries  writ.  (United  States  v.  Bollman, 
1  Cranch  0.  C.  373;  Fed.  Cas.  No.  14622.) 

§  365.  Form  of  return. — The  person  to  whom 
the  writ  is  directed  shall  certify  to  the  court,  or 
justice,  or  judge,  before  whom  it  is  returnable  the 
true  cause  of  the  detention  of  such  party.  (Rev. 
Stats,  sec.  757.) 

Return  of  writ.— The  return  should  be  signed  by 
him  to  whom  it  is  directed  (Seavey  v.  Seymour,  3  Cliff. 
439;  Fed.  Cas.  No.  12596);  and  if  the  return  be  false  or 
erasive,  he  may  be  committed  for  a  contempt  (United 
States  V.  Davis,  5  Cranch  C.  C.  622;  Fed.  Cas.  No. 
14920;  United  States  v.  Williamson.  3  Am.  Law  Reg. 
729:  Fed.  Cas.  No.  16725;  S.  C.  4  Am.  Law.  Reg.  b. 
Fed.  Cas.  No.  16726);  and  a  petition  from  the  person 
denying  his  detention  cnnnot  be  filed  (United  States 
V.  Williamson,  4  Am.  Law  Reg.  5;  Fed.  Cas.  No. 
1G726.)  If  defendant  is  present  in  court,  he  may  be 
directed  to  answer  interrogatories  without  issuing  a 
writ  of  attacliment.  (United  States  v.  Green,  3  Ma- 
son. 4S2;  Fed.  Cas.  No.  15256.)  Where  the  return 
shows  that  the  prisoner  was  charged  with  a  crime 
against  the  laws  of  the  United  States  and  within  the 
jurisdiction  of  that  court,  the  order  remanding  him 


995  HABEAS  CORPUS.  §  366 

was  proper.  (Palliser  v.  United  States,  136  U.  S. 
257.)  The  return  must  specify  the  true  cause  of  de- 
tention, and  the  petitioner  may  deny  any  of  the  facts 
set  forth  In  the  return.  (Re  Cuddy,  131  U.  S.  280.) 
At  common  law,  no  evidence  was  necessary  to  sup- 
port the  return;  it  was  deemed  to  Import  verity  until 
impeached.  (Crowley  v.  Christensen,  137  U.  S.  86.) 
And  this  rule  is  not  changed  by  any  United  States 
statute.  (Id.)  A  return  to  a  writ  of  habeas  corpus 
is  not  demurrable  for  defects  in  averments,  where 
they  are  supplied  by  petitioner's  allegations  and 
proofs.  (In  re  Ah  Toy,  45  Fed.  Rep.  795.)  Any  de- 
fect in  the  sheriff's  return  to  the  writ  of  habeas  cor- 
pus in  failing  to  set  forth  the  indictment  and  war- 
rant of  extradition,  is  no  reason  why  the  United 
States  should  take  the  prisoner  out  of  the  custody  of 
the  authorities  of  the  State.  (Whitten  v.  Tomlinson, 
160  U.  S.  231.) 

§  366.     Body  of  the  party  to  be  produced. — The 

person  making  the  return  shall  at  the  same  time 
hring  the  body  of  the  party  before  the  judge  who 
granted  the  writ.     (Rev.  Stats,  sec.  758.) 

Note.— It  is  the  duty  of  the  person  making  the  re- 
turn to  bring  in  the  body,  or  if  that  has  passed  be- 
yond his  control,  to  declare  so  far  as  he  knows  what 
has  become  of  him  (United  States  v.  Williamson,  4 
Am.  Law  Reg.  5;  Fed.  Cas.  No.  16726);  and  simply 
declaring  that  the  person  is  not  in  his  power,  cus- 
tody, or  control,  unless  all  the  material  facts  are 
stated,  will  not  effect  a  discharge.  (United  Sattes  v. 
Green,  3  Mason,  482;  Fed.  Cas.  No.  1.5256.)  Pending 
the  examination,  he  is  detained  under  the  authority 
of  the  writ  of  habeas  corpus,  and  may  be  bailed  out 
from  day  to  day  or  be  remanded  to  jail  (Ex  parte 
Kaine,  14  How.  103);  and  if  he  is  brought  from  the 
custody  of  a  State  officer  under  a  writ  of  habeas  cor- 


§§  367-368  HABEAS  CORPUS.  996 

pus  ad  testificandum,  he  will  be  remanded  to  such 
State  officer's  custody.  (In  re  Hamilton,  1  Ben.  455; 
Fed.  Cas.  No.  5976.)  While  in  custody  under  a  writ 
of  habeas  corpus  he  cannot  be  arrested  on  a  second 
warrant.  (In  re  Farez,  7  Blatchf.  345;  Fed.  Cas.  No. 
4645.) 

§  367.  Day  of  hearing. — When  the  writ  is  re- 
turned, a  day  shall  be  set  for  the  hearing  of  the 
cause,  not  exceeding  five  days  thereafter,  unless 
the  party  petitioning  requests  a  longer  time. 
(Eev.  Stats,  sec.  759.) 

§  368.  Denial  of  return. — The  petitioner  or 
the  party  imprisoned  or  restrained  may  deny  any 
of  the  facts  set  forth  in  the  return,  or  may  allege 
any  other  facts  that  may  be  material  in  the  case. 
Said  denials  or  allegations  shall  be  under  oath. 
The  return  and  all  suggestions  made  against  it 
may  be  amended,  by  leave  of  the  court,  or  justice, 
or  judge,  before  or  after  the  same  are  filed,  so  that 
thereby  the  material  facts  may  be  ascertained. 
(Eev.  Stats,  sec.  760.) 

Who  may  deny.— The  person  filing  the  petition 
may  be  some  i)erson  other  than  the  prisoner.  (In  re 
Hoyle.  12  Chic.  L.  N.  279;  Fed.  Cas.  No.  6803.)  The 
petitioner  may  deny  any  material  fact  set  out  in  the 
return.  (Seavey  v.  Seymour,  3  Cliff.  439;  Fed.  Cas. 
No.  12596;  see  Ex  parte  Kaine,  10  N.  Y.  Leg.  Obs.  257; 
Fed.  Cas.  No.  7598.)  Under  this  section  no  pleading  is 
required  after  the  traverse  to  the  return.  The  new 
matter  averred  therein  is  to  be  deemed  at  issue.  (In 
re  Leary,  10  Bon.  198;  Fed.  Cas.  No.  8162.)  On  ha- 
beas corpus  the  question  of  the  identity  of  the  pris- 
oner with  the  person  named  in  the  warrant  is  always 


997  HABEAS  CORPUS.  §  369 

open.  (In  re  Leary,  10  Ben.  198;  Fed.  Cas.  No.  8162.) 
But  in  habeas  corpus  proceedings  for  the  discharge 
of  a  prisoner  held  under  an  extradition  warrant  is- 
sued by  the  governor  of  a  State,  the  question  of  the 
prisoner's  identity  cannot  be  raised  by  demurrer  to 
the  return  of  the  officer  to  the  writ.  (In  re  Bloch,  87 
Fed.  Rep.  981.)  That  the  petitioner  may  deny  any  of 
the  facts  stated  in  the  return,  see  In  re  Cuddy,  131 
U.  S.  280. 

§  369.  Summary  hearing — Disposition  of  par- 
ty.— The  court,  or  justice,  or  judge  shall  proceed 
in  a  summary  way  to  determine  the  facts  of  the 
case,  by  hearing  the  testimony  and  arguments,  and 
thereupon  to  dispose  of  the  party  as  law  and  jus- 
tice require.     (Rev.  Stats,  sec.  761.) 

Review  on  writ. — The  decision  of  an  officer  who 
commits  a  person  for  interference  with  the  discharge 
of  liis  duties  may  be  inquired  into  on  application  fot 
the  writ  of  habeas  corpus.  (Ex  parte  Geisller,  4  Fed. 
Rep.  188.)  So  the  decision  of  a  board  that  a  person 
is  not  exempt  from  a  draft  is  not  conclusive.  (Case 
of  Antrim,  5  Phila.  278;  Fed.  Cas.  No.  495.)  On  a  re- 
view upon  the  application  by  a  party  held  under  a 
commitment  the  inquiry  is  as  to  whether  there  is  prob- 
able cause  to  believe  that  he  committed  the  offense. 
(United  States  v.  Johns,  4  Dall.  412;  In  re  Farez,  7 
Blatchf.  345;  Fed.  Cas.  No.  4645;  Ex  parte  Kaine,  10 
New  York  Leg.  Obs.  257;  Fed.  Cas.  No.  7598.)  If  the 
commitment  is  by  a  commissioner  the  court  may  ex- 
amine the  evidence  taken  before  him,  to  know 
whether  it  is  proper  to  continue  the  confinement  (In 
re  Martin,  5  Blatchf.  303;  Fed.  Cas.  No.  915;  Ex  parte 
Bennett,  2  Cranch  C.  C.  612,  Fed.  Cas.  No.  1311); 
and  if  not  in  writing  the  commissioner  may  be  re- 
quired to  state  on  oath  the  evidence  upon  which  he 
Fed.  Pkoc.    84. 


;  369  HABEAS  CORPUS.  998 

granted  the  commitment.  (Ex  parte  Bennett,  2 
Cranch  C.  C.  612;  Fed.  Cas.  No.  1311.)  The  finding 
of  the  commissioner  in  favor  of  the  jurisdiction  is 
not  conclusive  upon  the  court  upon  an  application  for 
a  writ  of  habeas  corpus.  (In  re  Newman,  79  Fed. 
Rep.  622'.)  If  the  commitment  be  by  a  commissioner 
for  extradition,  the  court  may  determine  the  compe- 
tency of  the  evidence  on  which  to  exercise  judg- 
ment, but  not  whether  legal  evidence  before  the  com- 
missioner was  sufficient  or  insufficient  to  wai-rant  his 
conclusion  (Ex  parte  Van  Aernam,  3  Blatchf.  160; 
Fed.  Cas.  No.  16824;  In  re  MacDonnell,  11  Blatchf. 
79;  Fed.  Cas.  No.  8771;  In  re  Wahl,  15  Blatchf.  334; 
Fed.  Cas.  No.  17041;  In  re  Stupp,  12  Blatchf.  501;  Fed. 
Cas.  No.  13563;  In  re  Veremaitre,  9  N.  Y.  Leg.  Obs. 
137;  Fed.  Cas.  No.  16915;  In  re  Kaine,  10  N.  Y.  Leg. 
Obs.  257;  Fed.  Cas.  No.  7598;  In  re  Heilbronn,  12  N. 
Y.  Leg.  Obs.  65;  Fed.  Cas.  No.  6323;  but  see  In  re 
Henrich,  5  Blatchf.  414;  Fed.  Cas.  No.  6369);  and  if 
there  is  competent  testimony  his  decision  cannot  be 
reviewed.  (In  re  Fowler,  4  Fed.  Rep.  303;  In  re  Van- 
dervelpen,  14  Blatchf.  137;  Fed.  Cas.  No.  16844;  In  re 
Wiegand,  14  Blatchf.  370;  Fed.  Cas.  No.  17618;  In  re 
Wahl,  15  Blatchf.  334;  Fed.  Cas.  No.  17041.)  If 
the  commitment  is  improper  the  party  may  be  re- 
manded, that  proceedings  de  novo  may  be  talien  be- 
fore the  commissioner  (In  re  Farez,  7  Blatchf.  345; 
Fed.  Cas.  No.  4645);  but  he  may  be  released  if  the 
warrant  is  void.  (In  re  Farez,  7  Blatchf.  345;  Fed. 
Cas.  No.  4645.)  So  if  the  commitment  is  irregular 
the  court  may  discharge  the  pi-isoner  from  it,  birt  may 
commit  him  de  novo  if  there  is  sufficient  evidence  for 
that  purpose.  (Ex  parte  Bennett,  2  Cranch  C.  C. 
1)12;  Fed.  Cas.  No.  1311).  A  judgment  of  deportation 
of  a  Chinese  person  by  a  court  having  jurisdiction 
cannot  be  impeached  on  habeas  corpus  by  proof  of  a 
different  state  of  facts  from  that  on  which  the  judg- 


999  HABEAS  CORPUS.  §  369 

ment  was  based.  (In  re  Gut  Lun,  83  Fed.  Rep.  141.) 
The  question  of  the  citzenship  of  a  Chinese  person 
may  be  determined  by  the  courts.  (In  re  Tom  Yum, 
64  Fed.  Rep.  485.)  Under  the  act  of  Congress  of  Feb- 
ruary 5,  1867  (14  Stat.  385),  the  court  or  judge  shall 
proceed  in  a  summary  way  to  determine  the  facts  of 
the  case  on  habeas  corpus;  and  if  the  petitioner  is  de- 
prived of  liberty  in  contravention  of  the  constitution 
or  laws  of  the  United  States,  he  shall  forthwith  bo 
discharged.  (Cxmningham  v.  Neagle,  135  U.  S.  1; 
Ex  parte  Medley,  134  U.  S.  160.)  Where  a  prisoner  is 
held  in  a  State  court  to  answer  for  necessarily  Icill- 
ing  the  assailant  of  one  whom  it  is  his  legal  duty  to 
protect,  he  cannot  be  guilty  of  a  crime  under  the 
State  law  which  jiistifies  the  protection  of  the  life  ot 
another.  (Cunningham  v.  Neagle,  135  U.  S.  1.)  A 
recital  in  a  warrant  that  the  person  is  a  fugitive  from 
justice  will  be  taken  as  true  until  overcome  by  satis- 
factory proof  in  habeas  corpus  proceedings  for  the 
discharge  of  a  person  held  under  an  extradition  war- 
rant issued  by  the  governor.  (In  re  Bloch,  87  Fed. 
Rep.  981.)  Upon  a  writ  of  habeas  corpus  to  procure 
the  release  of  a  person  who  has  been  committed  for 
contempt  in  refusing  to  answer  questions  the  court 
may  consider  the  testimony  and  the  facts  on  which 
the  committing  court  acted.  (Ex  parte  Irvine,  74 
Fed.  Rep.  954.)  It  may  be  shown  on  habeas  corpus 
that  a  warrant  of  removal  issued  by  a  governor  is 
invalid  by  reason  of  the  insufficiency  of  the  requisi- 
tion papers  on  which  it  was  issued.  (Ex  parte  Harte, 
25  U.  S.  App.  22;  63  Fed.  Rep.  249.)  A  court  may  not 
look  into  a  bill  of  exceptions  on  habeas  corpus  pro- 
ceedings collaterally  attacking  the  judgment.  (In  re 
Haskell,  52  Fed.  Rep.  795.)  The  circuit  court  cannot 
determine  on  a  writ  of  habeas  corpus  whether  a  cer- 
tain scheme  is  a  lottery.  (Horner  v.  United  States, 
143  U.  S.  570.)     Judgments  of  courts,  whether  Fed- 


§  369  HABEAS  CORPUS.  1000 

eral  or  Slate,  cannot  be  treated  as  void  and  attacked 
collaterally  on  habeas  corpus.  (In  re  Swan,  150  U. 
S.  637.)  The  circuit  courts  have  no  jurisdiction  as 
parens  patriae  to  delermiue  upon  habeas  corpus  the 
custody  of  an  insane  person,  where  the  question  of 
such  custody  is  one  of  discretion  as  to  the  place  and 
character  of  the  confinement  and  not  of  the  legality 
of  any  restraint.  (King  v.  McLean  Asylum,  21  U.  S. 
App.  481;  64  Fed.  Rep.  331.) 

Question  of  jurisdiction.— The  inquiry  on  habeas 
corpus  is  one  of  jurisdiction.  (Delgado  v.  Chavez,  140 
U.  S.  586;  In  re  Belt,  159  U.  S.  95;  In  re  Marsh,  51 
Fed.  Rep.  277;  In  re  Albert  Frederich,  149  U.  S.  70.) 
It  is  an  inquiry  into  the  legality  of  the  detention, 
and  is  a  new  suit  to  enforce  a  civil  right,  where  he 
claims  his  liberty  under  the  Constitution  and  a  treaty 
of  the  United  States.  (Ex  parte  Tom  Toug,  108  U.  S. 
556.)  As  where  one  is  in  custody,  under  an  order  in 
excess  of  the  jurisdiction.  (Ex  parte  Rowland,  104 
U.  S.  604;  26  L.  ed.  861;  Ex  parte  Fisli,  113  U.  S.  713; 
In  re  Nielsen,  131  U.  S.  176.)  The  writ  may  be  used 
to  obtain  a  discharge  from  imprisonment  under  an 
order  of  a  court  which  does  not  possess  jurisdiction. 
(In  re  Terry,  128  U.  S.  289.)  A  person  will  not  be  dis- 
charged on  the  ground  of  want  of  jurisdiction,  where 
there  is  fair  reason  to  believe  that  the  court  has  juris- 
diction, and  there  is  no  jurisdiction  in  any  other  court. 
(In  re  Jaclison,  40  Fed.  Rep.  372.)  In  habeas  corpus 
proceedings  to  review  the  sentence  of  a  court  martial 
the  only  questions  that  can  be  inquired  into  are  as  to 
the  jurisdiction  of  the  court  over  the  person  and  of- 
fense charged,  and  whether  it  acted  within  the  scope 
of  its  lawful  powers.  (In  re  Crain,  &4  Fed.  Rep.  788; 
Johnson  v.  Sayre,  158  U.  S.  109.)  The  questions 
which  can  be  presented  upon  the  writ  of  habeas  cor- 
pus to  review  the  decision  of  a  United  States  Com- 
missioner relate  to  the  jurisdiction  of  the  commis- 


1001  HABEAS  CORPUS.  §  369 

sioner  and  the  legality  of  his  order  (In  re  Li  Sing, 
U.  S.  App.;  86  Fed.  Rep.  896;  In  re  Adutt,  55 
Fed.  Rep.  376;  In  re  Bryant,  80  Fed.  Rep.  282);  and 
in  reviewing  the  decision  of  a  collector,  denying  to  a 
Chinese  person  admission  to  the  United  States,  the 
court  may  examine  all  the  facts  and  circumstances 
.before  the  collector.  (United  States  v.  Chung  Shee, 
44  U.  S.  App.  751:  76  Fed.  Rep.  951.)  Under  the  sun- 
dry civil  appropriation  act  of  August,  1894,  the  only 
questions  into  which  a  court  can  inquire  upon  habeas 
corpus  seel<ing  the  discharge  of  the  relator  from  re- 
straint by  the  collector  of  customs  are  whether  the 
relator  is  an  alien,  and  whether  the  collector  has  made 
a  decision.     (In  re  Chin  Yuen  Sing.  65  Fed.  Rep.  571.) 

Discharge  on  writ.— Where  one  is  in  custody  for 
acts  done  in  pursuance  of  the  Constitution  and  laws 
of  the  United  States,  he  should  be  discharged  from 
custody  under  the  writ.  (Ex  parte  Royall,  117  U.  S. 
241;  In  re  Loney,  134  U.  S.  372;  In  re  White,  43  Fed. 
Rep.  91B;  45  Fed.  Rep.  237;  In  re  Beine,  42  Fed.  Rep. 
545;  Ex  parte  McClusky,  40  Fed.  Rep.  71;  In  re 
Shaner,  39  Fed.  Rep.  809;  In  re  Neagle,  135  U.  S.  1.) 
A  duty  imposed  upon  a  marshal  is  a  law,  within  the 
meaning  of  the  statute  providing  for  the  writ  of  ha> 
beas  corpus.     (In  re  Neagle,  39  Fed.  Rep.  833.) 

If  a  certificate  granted  by  a  commissioner  was  is- 
sued without  authority  of  law,  the  party  held  under 
it  may  be  released  (Ex  parte  Davis,  14  Daw  Rep.  301; 
Fed.  Cas.  No.  3613);  so  where  a  party  has  been  ar- 
rested under  a  treasury  warrant  issued  without  au- 
thority (Ex  parte  Randolph,  2  Brock.  447;  Fed.  Cas. 
No.  11558);  so  if  the  sentence  of  a  court  is  void,  as 
being  in  excess  of  its  authority  (Ex  parte  Lange,  18 
Wall.  163);  so  if  a  military  commission  imposes  a 
sentence  not  authorized  by  law  (Ex  parte  Hewitt,  3 
Am.  Law  Rev.  .382;  Fed.  Cas.  No.  6442);  so  if  a  court- 
martial  proceeds  against  a  party  without  notice  its 


§  369  HABEAS  CORPUS.  1002 

sentence  Is  void,  and  fhe  party  may  be  released 
(Meade  v.  Deputy  Marshal,  1  Brock.  324;  Fed.  Gas, 
No.  9372):  but  if  a  court-martial  has  jurisdiction,  a 
party  held  for  trial  cannot  be  released  (In  re  Bogart, 
2  Saw.  396;  Fed.  Gas.  No.  1596);  nor  can  its  judg- 
ment be  collaterally  impeached  for  irregularities. 
(Ex  parte  Reed,  100  U.  S.  13.)  If  the  statute  under* 
Avhich  a  party  is  indicted  is  unconstitutional,  it  can- 
not be  a  legal  cause  of  imprisonment  (Ex  parte  Sie- 
bokl,  100  U.  S.  371);  and  the  appellate  court  may  give 
relief  without  waiting  for  an  appeal  or  writ  of  eiTor. 
^Ex  parte  Siebold,  100  U.  S.  371.)  If  a  party  under 
sentence  has  received  a  pardon,  he  may  be  released 
under  this  writ.  (Ex  parte  Greathouse,  4  Saw.  487; 
Fed.  Gas.  No.  5741.)  A  discharge  from  the  process 
under  which  he  is  imprisoned  discharges  him  from 
confinement  under  that  pi-ocess  alone.  (Ex  parte 
Milburn,  9  Petere,  704.)  A  person  imprisoned  un- 
der a  sentence  for  a  longer  time  than  the  court 
had  power  to  impose  can  be  released  on  habeas 
corpus.  (Re  Monroe,  46  Fed.  Rep.  52;  but  see  In  re 
Swan,  150  U.  S.  6:J7.)  So  where  process  is  void,  he 
may  be  released  on  the  ground  that  he  is  deprived  of 
liberty  without  due  process  of  law  (Re  Monroe,  46 
Fed.  Rep.  52);  or  whei'e  the  court  had  no  jurisdic- 
tion of  the  offense.  Re  Goy,  127  U.  S.  731.)  So  a 
second  conviction  and  punishment  for  the  same  of- 
fense is  an  excess  of  authority.  (Re  Nielsen,  131  U. 
S.  176.)  A  person  imprisoned  for  an  alleged  con- 
tempt may  be  released  if  the  act  was  not  forbidden 
by  any  order  of  court  at  the  time,  but  which  the  court 
afterward  made  nunc  pro  tunc.  (Ex  parte  Buskirk, 
25  U.  S.  App.  613;  72  Fed.  Rep.  14.)  A  judgment  of 
a  Federal  court  discharging  on  habeas  corpus  a  Ghi- 
nese  immigiant  from  detention  on  board  a  vessel, 
and  permitting  her  to  land  is  conclusive  as  to  her 
right  to  come  into  this  country.     (United  States  v. 


1003  HABEAS  CORPUS.  §  369 

Chung  Shee,  71  Fed.  Rep.  277;  44  U.  S.  App.  751;  76 
Fed.  Rep.  9.31.)  A  judgment  of  acquittal  by  the  courts 
of  the  United  States  under  the  laws  will,  as  to  the 
is.sues  involved,  protect  the  relators  from  prosecution 
or  molestation  elsewhere.  (Kelly  v.  State  of 
Georgia,  68  Fed.  Rep.  052.)  The  fact  thiat  an  officer 
of  the  United  States  sought  to  be  held  in  a  State  court 
for  punishment  for  acts  done  in  performance  of  his 
duty  to  the  United  States,  may  raise  the  question  of 
his  immunity  in  the  State  court,  is  not  sufficient 
reason  for  a  Federal  court  to  refuse  to  release  him 
on  habeas  corpus.  (In  re  Waite,  81  Fed.  Rep.  359.) 
A  witness  aiTested  while  coming  into  a  State  to  tes- 
tify in  obedience  to  a  subpoena  from  a  Federal  court 
will  be  released.  (United  States  v.  Baird,  85  Fed. 
Rep.  633.) 

When  not  released.— If  a  court  holding  a  party  un- 
der sentence  had  jurisdiction,  he  cannot  be  released 
ni.erely  for  errors  in  the  proceedings  (Fx  parte  Parks, 
93  U.  S.  18;  Ex  parte  Siebold,  100  U.  S.  371;  In  re 
Callicot,  8  Blatchf.  89;  Fed.  Cas.  No.  2323;  Ex  parte 
Watkins,  3  Peters.  193;  Ex  parte  Shaffenburg,  4  Dill. 
271;  Fed.  Cas.  No.  12696;  .Tohnson  v.  U.  S.,  3  Mc- 
Lean, 89;  Fed.  Oas.  No.  7418),  although  the  indictment 
alleges  the  commission  of  the  crime  more  than  two 
years  before  commencement  of  the  prosecution  (John- 
son V.  United  States,  3  McLean,  89;  Fed.  Cas.  No. 
7418),  or  although  it  does  not  show  arty  offense  cog- 
nizable by  such  court.  (Ex  parte  Watkins,  3  Peters, 
193.)  If  a  party  has  been  committed  for  a  con- 
tempt, inquiry  cannot  be  made  into  the  sufficiency 
of  the  cause  of  commitment.  (Ex  parte  Kearney,  7 
Wheat.  38.)  A  person  imprisoned  for  contempt  in 
violating  an  injunction  cannot  be  released  because 
the  necessary  jurisdictional  facts  do  not  appear  on 
the  face  of  the  pleadings  in  the  injunction  case.  (In 
re  Eaton,  51   Fed.   Rep.   804.)    The  decision  of  one 


§  369  HABEAS  CORPUS.  1004 

court  or  judge  upon  a  return  of  the  writ  will  not  bar 
successive  applications  for  discbarge  under  the  writ 
of  habeas  corpus.  (Ex  parte  Kaine,  3  Blatchf.  1; 
Fed.  Cas.  No.  7597.)  An  extradition  warrant  ouLiht 
not  to  be  pronounced  void  merely  because  of  some 
technical  defect  in  the  foreign  indictment  or  affida- 
vit. (Webb  V.  York,  79  Fed.  Rep.  616.)  Refusal  of 
a  State  court  to  assign  counsel  to  the  prisoner,  and 
forcing  him  to  trial  without  compulsory  process  to 
secure  witnesses  cannot  be  considered  by  a  Federal 
court  on  habeas  corpus  proceedings.  (In  re  Mc- 
Knight,  52  Fed.  Rep.  799.)  A  prisoner  cannot  be  dis- 
charged on  habeas  corpus  until  he  has  performed  so 
much  of  the  judgment,  or  served  out  so  much  of  the 
sentence  as  it  was  within  the  power  of  the  court  to 
impose  (Re  Swan,  150  U.  S.  C37),  or  unless  it  is  af- 
firmatively shown  that  the  judgment  or  sentence 
under  which  the  petitioner  is  confined  is  void,  he  is 
not  entitled  to  his  discharge.  (United  States  v.  Prid- 
geon,  153  U.  S.  48.)  A  prisoner  committed  on  a  crim- 
inal charge  will  not  be  released  merely  because  he 
was  brought  back  from  another  State  as  a  fugitive 
from  justice  by  means  of  extradition  warrants  pro- 
cured by  false  affidavits.  (In  re  Moore,  75  Fed.  Rep. 
821.)  A  hearing  and  discharge  upon  an  application 
for  committal  to  jail  is  no  ground  for  discharge  on 
habeas  corpus  from  imprisonment  under  an  indict- 
ment. (Wliitten  V.  Tomlinson,  160  U.  S.  231.)  Er- 
ror of  a  State  court  in  denying  a  stay  of  execution  in 
a  capital  case,  because  of  a  pending  appeal  to  a  Fed- 
eral court,  is  not  ground  for  setting  the  prisoner  at 
liberty  on  habeas  corpus,  when  that  judgment  has 
been  superseded  by  the  supreme  court  of  the  State, 
and  further  proceedings  have  been  taken  in  the  State 
courts.  (In  re  Boardman.  109  U.  S.  39.)  The  dis- 
charge on  habeas  corpus  of  a  person  arrested  on  a 
warrant  of  a  State  court  as  a  fugitive  from  the  jus- 


1005  HABEAS  COEPUS.  §§  370-371 

tice  of  a  State  of  which  he  is  a  native  born  citizen, 
when  claimed  on  the  ground  that  he  holds  a  consu- 
lar office,  may  be  denied  by  a  Federal  court  where  his 
consular  office  has  terminated  at  the  date  of  the  order 
of  denial,  although  it  existed  at  the  time  of  his  ar- 
rest and  when  the  petition  for  the  writ  was  filed, 
(lasigi  V.  Van  De  Carr,  106  U.  S.  391.) 

§  370.     In  cases  involving  the  law  of  nations. — 

When  a  writ  of  habeas  corpus  is  issued  in  the  case 
of  any  prisoner  who,  being  a  subject  or  citizen  of  a 
foreign  State,  and  domiciled  therein,  is  committed 
or  confined  or  in  custody,  by  or  under  the  author- 
ity or  law  of  anyone  of  the  United  States,  or  pro- 
cess founded  thereon,  on  account  of  any  act  done 
or  omitted  under  any  alleged  right,  title,  authority, 
privilege,  protection,  or  exemption  claimed  under 
the  commission  or  order  or  sanction  of  any  foreign 
State,  or  under  color  thereof,  the  validity  and  ef- 
fect whereof  depend  upon  the  law  of  nations, 
notice  of  the  said  proceedings  to  be  prescribed  by 
the  court  or  justice  or  judge  at  the  time  of  grant- 
ing said  writ  shall  be  served  on  the  attorney  gen- 
eral or  other  officer  prosecuting  the  pleas  of  said 
State,  and  due  proof  of  such  service  shall  be  made 
to  the  court  or  justice  or  judge  before  the  hearing. 
{Eev.  Stats,  sec.  762.) 

§  371.  Appeals  to  circuit  court. — Erom  the 
final  decision  of  any  court,  justice,  or  judge  in- 
ferior to  the  circuit  court,  upon  an  application  for 
a  writ  of  habeas  corpus,  or  upon  such  writ  when 
issued,  an  appeal  may  be  taken  to  the  circuit  court 
for  the  district  in  which  the  cause  is  heard. 


g  372  HABEAS  COKPUS.  lOOti 

1.  In  the  case  of  any  person  alleged  to  be  re- 
strained of  his  liberty  in  violation  of  the  constitu- 
tion or  of  any  law  or  treaty  of  the  United  States. 

2.  In  the  case  of  any  prisoner  who,  being  a  sub- 
ject or  citizen  of  a  foreign  State,  and  domiciled 
therein,  is  committed  or  confined  or  in  custody,  by 
or  under  the  authority  or  law  of  the  United  States, 
or  of  any  State,  or  process  founded  thereon,  for  or 
on  account  of  any  act  done  or  omitted  under  any 
alleged  right,  title,  authority,  privilege,  protec- 
tion, or  exemption,  set  up  or  claimed  under  the 
commission,  order,  or  sanction  of  any  foreign  State 
or  sovereignty,  the  validity  and  effect  whereof  de- 
pend upon  the  law  of  nations,  or  under  color  there- 
of.    (Eev.  Stats,  sec.  7G3.) 

The  appellate  jiu'iscliction.  formerly  exercised  by 
the  circuit  courts  under  this  section,  now  belongs  to 
the  circuit  courts  of  appeals  under  sections  four  to 
six  of  the  act  of  March  3,  1891.  (United  States  v. 
Fowkes,  53  Fed.  Rep.  13,  14;  King  v.  McLean  Asy- 
lum. CA  Fed.  Rep.  325.  See  Cross  v.  Burke,  146  U.  S. 
82.  86;  In  re  Lennon.  150  U.  S.  393,  398;  Clarke  v. 
McDade,  165  U.  S.  108,  170;  Ex  parte  Jugiro,  44  Fed. 
Rep.  754.) 

§  372.  Appeal  to  supreme  court. — From  the 
final  decision  of  such  circuit  court  an  appeal  may 
be  taken  to  the  supreme  court  in  the  cases  de- 
scribed in  the  preceding  section.  (Eev.  Stats,  sec. 
704;  as  amended,  23  U.  S.  Stats.  437.) 

Appeal.— No  appeal  lies  to  the  supreme  court  from 
an  order  of  a  circuit  judge,  sitting  as  such  and  not 
as  a  court,  discharging  a  prisoner  brought  before 
him  on  a  writ  of  habeas  corpus     (Carper  v.  Fitzger- 


1007  HABEAS  CORPUS.  §  373 

aid,  121  tJ.  S.  87.  See  Ex  parte  Royall,  112  U.  S.  181) ; 
neither  will  au  appeal  lie  from  an  order  of  a  circuit 
judge  refusing  to  issue  a  writ  of  habeas  corpus  after 
a  hearing  at  chambers.  (In  re  King,  51  Fed.  Rep. 
434;  Lambert  v.  Barrett,  157  U.  S.  697.)  Since  the 
amendment  of  section  764  of  the  Revised  Statutes,  so 
as  to  give  this  court  jurisdiction,  upon  appeal,  to  re- 
view the  final  decisions  of  the  circuit  court  of  the 
United  States  in  cases  of  habeas  corpus,  the  right  to 
the  writ,  upon  original  application  to  this  court  is 
not,  in  every  case,  an  absolute  one.  (Wales  v.  Whit- 
ney, 114  U.  S.  564;  29  L.  ed.  277;  Ex  parte  Royall,  117 
U.  S.  241,  250;  Ex  parte  Terry,  128  U.  S.  289.)  A  final 
order  of  the  circuit  court  at  a  stated  term,  dismiss- 
ing a  writ  of  habeas  corpus  and  remanding  the  pris- 
oner to  the  custody  of  the  marshal  for  trial,  is  ap- 
pealable to  this  court.  (In  re  Palliser,  136  U. 
S.  256.)  The  supreme  court  may,  by  means  of  the 
writ  of  certiorari,  review  the  judgiuents  of  the  cir- 
cuit courts  of  appeals  in  habeas  corpus  cases.  (Lau 
Ow  Bew  V.  U.  S.,  144  U.  S.  47.)  Pending  an  appeal 
from  a  refusal  to  grant  the  writ  in  behalf  of  a  per- 
son confined  under  sentence  of  a  State  court,  the  cus- 
tody of  the  prisoner  cannot  be  disturbed.  (In  re  Mc- 
Kane,  61  Fed.  Rep.  205.)  The  question  whether  good 
cau.se  is  shown  for  a  prisoner's  discharge  is  to  be  ju- 
dicially determined  by  the  judge,  and  his  determina- 
tion can  be  reviewed  by  appeal,  but  not  by  manda- 
mus. (Commonwealth  of  Virginia  v.  Paul,  148  U.  S. 
107.)  The  rule  that  a  writ  of  habeas  corpus  cannot 
l)e  used  to  perform  the  oflice  of  a  writ  of  error  applies 
not  only  to  original  writs  of  habeas  corpus  issued  by 
the  supreme  court,  but  also  to  appeals  to  it  from 
courts  below  in  habeas  corpus  proceedings.  (Gonza- 
les V.  Cunningham,  164  U.  S.  612.)  That  a  prisoner 
should  not  be  admitted  to  bail  pending  an  appeal 
from  a  denial  of  the  writ,  whether  the  court  is  pro- 


§  373  HABEAS  CORPUS.  lOOS 

hibited  from  so  doing  or  not.  (In  i-e  Chin  Yuen  Sing, 
65  Fed.  Rep.  788.)  As  to  when  a  prochein  ami  of  an 
insane  person  may  prosecute  an  appeal  from  an  order 
of  a  circuit  court  remanding  the  insane  person  to  an 
asylum,  see  King  v.  McLean,  21  U.  S.  App.  407;  64 
Fed.  Kep.  325.  Where  an  appeal  has  been  taken  from 
an  order  of  a  Federal  court  denying  a  writ  of  ha- 
beas corpus  to  release  one  convicted  of  a  capital 
crime  by  a  State  court,  and  the  order  has  been  in  fact 
affirmed,  the  State  court  is  not  required  before  pro- 
ceeding to  order  the  execution,  to  await  the  filing  in 
the  Federal  court  of  the  supreme  court  mandate. 
(In  re  Durrant,  84  Fed.  Rep.  314.)  The  supreme 
court  may  on  an  appeal  in  a  habeas  corpus  case  re- 
view both  law  and  fact.  (Johnson  v.  Sayre,  158 
U.  S.  109.) 

§  373.  Appeals,  how  taken. — The  appeals  al- 
lowed by  the  two  preceding  sections  shall  be  taken 
on  such  terms,  and  under  such  regulations  and  or- 
ders, as  well  for  the  custody  and  appearance  of  the 
person  alleged  to  be  in  prison  or  confined  or  re- 
strained of  his  liberty,  as  for  sending  up  to  the 
appellate  tribunal  a  transcript  of  the  petition,  writ 
of  habeas  corpus,  return  thereto,  and  other  pro- 
ceedings as  may  be  prescribed  hy  the  supreme 
courts,  or,  in  default  thereof,  by  the  court  or  judge 
hearing  the  cause.     (Rev.  Stats,  sec.  765.) 

How  taken. — The  provisions  of  this  section  do  not 
violate  the  seventh  amendment  to  the  Constitution. 
(McElrath  v.  U.  S.,  102  U.  S.  426.)  Under  the  Re- 
vised Statutes  and  the  rules  of  the  supreme  court,  the 
allowance  of  an  appeal  by  a  circuit  or  distx'ict  court, 
or  by  some  judge  thereof  or  of  the  supreme  court,  is 
necessary  to  the  perfection  of  an  appeal;  and  if  an 
order  of  allowance  is  denied  by  the  court,  the  party 


i009  HABEAS  CORPUS.  §  374 

desiring  to  appeal  miist  <' pply  either  to  some  of  the 
other  judges  named  for  the  allowance,  or  to  the  su- 
preme court  for  a  writ  of  mandamus  in  aid  of  its  ap- 
pellate jurisdiction.  (In  re  Durrant,  84  Fed.  Rep. 
317.)  Citation  is  not  required  when  the  appeal  is 
talccn  in  open  court  during  the  term  at  which  the  de- 
cree is  entered;  aliter  where  at  a  subsequent  term  the 
appeal  is  allowed,  although  the  solicitors  of  the  ap- 
pellee be  present.  (Kailroad  Co.  v.  Blair,  100  U.  S. 
G61.)  The  appeal  will  uot,  however,  be  dismissed  in 
the  latter  case,  but  terms  will  be  imposed  upon  the 
appellant.  (Dayton  v.  Lash,  94  U.  S.  112;  Railroad 
Co.  V.  Blair,  100  U.  S.  GUI.)  The  appeal  must  be  in 
writing  and  filed  with  the  clerk,  and  when  afterward 
the  bond  is  given,  the  appeal  is  perfected.  (Winslow 
V.  Wilcox,  12  Fed.  Rep.  352.)  A  district  judge,  who 
has  denied  a  writ  of  habeas  corpus  to  release  a  for- 
eign consul  imprisoned  under  State  authority,  has  no 
power  under  this  section  and  rule  34,  supreme  court, 
to  admit  the  prisoner  to  bail  pending  an  appeal  from 
the  order  denying  the  writ.  (In  re  lasigi,  79  Fed. 
Rep.  755.)  No  bill  of  exceptions  is  necessary  on 
appeal  from  the  order  of  a  district  judge  in  a  liaboas 
corpus  case.  (Solomon  v.  Davenport,  U.  S.  App. 
87  Fed.  Rep.  318.) 

§  374.  Pending  proceedings — Action  by  Gtate 
authority  void. — Pending  the  proceedings  or  ap- 
peal in  the  cases  mentioned  in  the  three  preceding 
sections,  and  until  final  judgment  therein,  and 
after  final  Judgment  of  discharge,  any  proceeding 
against  the  person  so  imprisoned  or  confined  or  re- 
strained of  his  liberty,  in  any  State  court,  or  by  or 
under  the  authority  of  any  State,  for  any  matter 
so  heard  and  determined,  or  in  process  of  being 
heard  and  determined,  under  such  writ  of  habeas 

Fed.  Peoc— 85. 


§  374  HABEAS  CORPUS.  1010 

corpus,  shall  be  deemed  null  and  void;  provided,, 
that  no  such  appeal  shall  be  had  or  allowed  after 
six  months  from  the  date  of  the  judgment  or  order 
complained  of.  (Eev.  Stats,  sec.  766;  as  amended 
27  TJ.  S.  Stats.  751.) 

Jurisdiction  of  the  State  court  under  this  section  is 
restrained  only  pending  the  proceeding  in  the  courts 
of  the  United  States  on  habeas  corpus,  and  until  final 
judgment  therein.  (In  re  Sblbuya  Jugiro,  140  U.  S. 
291.)  A  .iudgment  of  the  supreme  court  of  the  United 
States  affirming  a  judgment  of  the  cu'cuit  court  deny- 
ing a  habeas  con:)us  to  review  the  judgment  of  a  State 
court  in  a  criminal  case  is  a  final  judgment  within 
this  section.  (In  re  Shibuya  Jugiro,  140  U.  S.  291.)  Un- 
der this  section  an  order  of  the  State  court,  directing 
the  infliction  of  the  death  penalty  pending  an  appeal 
from  the  order  of  the  district  court  denying  a  writ  of 
habeas  corpus,  is  invalid  (In  re  Ebanks,  84  Fed.  Rep. 
311);  but  if  the  order  of  the  district  court  has  been 
in  fact  affirmed  on  appeal  the  State  court  is  not  re- 
quired before  proceeding  to  order  the  execution  to 
await  the  filing  in  the  Federal  court  of  the  supreme 
court  mandate.  (In  re  Boardman,  169  U.  S.  39.) 
The  fact  that  a  prisoner  Is  daily  required  to  perform 
hard  labor  pending  the  appeal  gives  no  authority  un- 
der this  section  for  any  interference  on  a  subsequent 
application  for  the  writ.  (In  re  McKane,  61  Fed. 
liep.  205.) 


1011  EVIDENCE. 


CHAPTER  XIX. 

EVIDENCE. 

§  875.  No  witness  excluded  on  account  of  color  or 
interest. 

§  376.  Defendants  in  criminal  cases  competent  wit- 
nesses. 

§  377.  Testimony  of  witnesses  before  Congress  not 
admissible  against  them  in  criminal  prosecu- 
tions. 

§  378.  Pleadings,  disclosures,  etc.,  not  to  be  used  in 
criminal  proceedings. 

§  379.    Mode  of  proof  in  common-law  actions. 

§  380.    Mode  of  proof  in  equity  and  admiralty  causes. 

§  381.  Notaries  may  talie  depositions,  acknowledg- 
ments, etc. 

§  381  a.  Depositions  may  follow  State  usage. 

§  382.     Depositions  de  bene  esse. 

§  383.     Mode  of  talking  depositions  de  bene  esse. 

§  384.  Transmission  to  the  court  of  depositions  de 
bene  esse. 

§  385,  Depositions  under  a  dedimus  potestatem  and 
in  perpetuam,  etc. 

§  386.  Depositions  in  perpetuam,  etc.,  admissible  at 
discretion  of  the  court. 

§  387.  Depositions  under  a  dedimus  potestatem, 
how  talien. 

§  388.  Subpoena  duces  tecum  under  a  dedimus  po- 
testatem. 

§  389.  Witness  under  a  dedimus  potestatum,  when 
required  to  attend. 

§  390.  Depositions  in  District  of  Columbia  in  suits 
pending  elsewhere. 


EVIDENCE.  1012 

8  391.  Same  subject— When  no  commission  nor  no- 
tice. 

§  392.  Same  subject— Manner  of  taking  and  trans- 
mitting tlie  depositions. 

S  393.     Same  subject— Witness  fees. 

§  394.     Letters  rogatory  from  United  States  courts. 

S  395.    Letters  rogatory  from  foreign  courts. 

i  390.  Subpoenas  for  witnesses  to  run  into  another 
district. 

§  397.  Witnesses,  form  of  subpoena— Attendance 
under. 

§  398.  Witnesses  in  behalf  of  indigent  defendants  in 
criminal  cases. 

§  309.     Eecognizance  of  witnesses  in  criminal  cases. 

§  400.  Vermont— Recognizance  of  witnesses,  how 
taken. 

§  401.  Eecognizance  of  witnesses  required  at  any 
time  on  application  of  district  attorney. 

§  402.     Copies  of  department  records  and  papers. 

§  403.  Copies  of  records,  etc.,  in  office  of  the  solici- 
tor of  the  treasury. 

§  404.  Instruments  and  papers  of  comptroller  of  the 
currency. 

5  405.     Organization  certificates  of  national  banks. 

§  406.     Transcripts  from  books,  etc.,  of  the  treasury. 

§  407.  Transcripts  from  books  of  the  treasury  con- 
tinued. 

S  408.     Copies  of  returns  in  returns  office. 

§  409.  Copies  of  post-office  records  and  auditor's 
statement  of  accounts. 

S  410.  Copies  of  statements  of  demands  by  post-of- 
fice department. 

S  411.    Copies  of  records,  etc.,  of  general  land-office. 

§  412.     Copies  of  records,  etc.,  of  patent  office. 

§  41.3.     Copies  of  foreign  letters  patent. 

S  414.  Printed  copies  of  specifications  and  drawings 
of  patents. 


1013  EVIDENCE.  §375 

§  415.     Extracts  from  the  journals  of  Congress. 

§  416.  Copies  of  records,  etc.,  in  offices  of  United 
States  consuls,  etc. 

§  417.  Certain  books  and  papers  in  offices  of  district 
and  circuit  courts  in  Texas,  Florida,  Wiscon- 
sin, Minnesota,  Iowa,  and  Kansas. 

§  418.  Transcribed  records  in  tbe  clerk's  offices  of 
western  district  of  North  Carolina. 

§  419.    When  original  records  are  lost  or  destroyed- 

§  420.     Same  subject. 

§  421.     Lost  record  of  cause. 

§  422.     Records  of  United  States  courts— Notice. 

§  423.     Force  and  effect  of  papers  restored. 

§  424.    Restoration  of  records— Compensation,  etc. 

§  425.  Authentication  of  legislative  acts  and  proof 
of  judicial  proceedings  of  States,  etc. 

§  426.  Proof  of  records,  etc.,  kept  in  offices  not  per- 
taining to  courts. 

§  427.  Copies  of  foreign  records,  etc.,  relating  to 
land  titles  in  the  United  States. 

§  428.  Evidence  of  United  States  Statutes,  Little  & 
Brown's  Edition. 

§  429,     Printed  copies  of  statutes  to  be  evidence, 

§  429  a.  Supplement  to  Revised  Statutes  as  evidence. 

§  430.     Revised  Statutes. 

§  431.  Burden  of  proof,  when  it  lies  on  claimant  in 
seizure  cases. 

§  432.  I'ossessory  actions  for  recovery  of  mining  ti- 
tles. 

§  375.  No  witness  excluded  on  account  of 
color  or  interest. — In  the  courts  of  the  United 
States  no  witness  shall  be  excluded  in  any  action 
en  account  of  color,  or  in  any  civil  action  because 
he  is  a  party  to  or  interested  in  the  issue  tried; 
provided,  that  in  actions  by  or  against  executors, 
Administrators,  or  guardians,  in  which  judgment 


§  375  EVIDENCE.  1014 

may  be  rendered  for  or  against  them,  neither  party 
shall  he  allowed  to  testify  against  the  other,  as  to 
any  transaction  with  or  statement  by  the  testator, 
intestate,  or  ward,  unless  called  to  testify  thereto 
by  the  opposite  party,  or  required  to  testify  thereto 
by  the  court.  In  all  other  respects  the  laws  of 
the  State  in  which  the  court  is  held  shall  be  the 
rules  of  decision  as  to  the  competency  of  witnesses 
in  the  courts  of  the  United  States  in  trials  at  com- 
mon law,  and  in  equity  and  admiralty.  [See  Rev. 
Stats,  sec.  1977.]     (Kev.  Stats,  sec.  858.) 

Competency  of  witnesses. — The  competency  of  par- 
ties to  testify  as  to  transactions  with  decedent  in  ac- 
tions against  personal  representatives  is  to  be  de- 
termined by  this  section  rather  than  by  State  laws 
(Page  V.  Burnstine,  102  U.  S.  664;  De  Beaumont  v. 
Webster,  39  U.  S.  App.  713;  81  Fed.  Kep.  535;  Morris 
V.  Norton,  43  U.  S.  App.  739;  75  Fed.  Rep.  912);  and 
the  objection  to  the  competency  of  a  witness  is  dis- 
posed of  under  this  section.  (Nat.  Bank  v.  Potter, 
102  U.  S.  163;  Beardsley  v,  U.  S.,  3  Morr.  Trans.  541.) 
The  testimony  of  parties  is  not  to  be  excluded  in  suits 
by  or  against  administrators,  except  as  to  transac- 
tions with  or  statements  by  deceased.  (De  Beaumont 
V.  AVebster,  39  U.  S.  App.  713;  81  Fed.  Rep.  535.)  The 
husband  of  a  deceased  person  defending  an  action  as 
her  executor  is  not  precluded  from  testifying  to  inci- 
dents occurring  with  third  parties  to  the  benefit  of 
deceased  as  to  which,  if  living  she  could  not  have 
given  testimony  to  contradict  his.  (Hinchman  v. 
Parlin  &  Orendorf  Co.,  41  U.  S.  App.  301;  74  Fed. 
Rep.  698.)  This  section  does  not  apply  to  territorial 
courts  (Good  v.  Martin,  95  U.  S.  90);  but  it  applies  to 
courts  of  the  District  of  Columbia,  (Noerr  v.  Brewer, 
1  McAr.  507.)     This  section  applies  to   trials  in  which 


1015  EVIDENCE.  §  375 

the  United  States  is  a  party.  (Green  v.  United  States, 
9  Wall.  655;  but  see  Jones  v.  United  States,  1  Ct.  of 
CI.  383.)  It  is  remedial,  and  its  language  should  be 
construed  accordingly.  (Texas  v.  Chiles,  21  Wall. 
488.)  A  party  may  testify  either  orally  or  by  deposi- 
tion. (Cornett  v.  Williams,  20  Wall.  226.)  This  sec- 
tion applies  to  a  case  where  a  party  offers  to  testify 
on  his  own  behalf  (Texas  v.  Chiles,  21  Wall.  488;  Rail- 
road Co.  V.  Pollard,  22  Wall.  341);  but  an  application 
for  an  order  to  testify  in  one's  own  behalf  must  not 
be  granted  if  it  would  adopt  a  rule  of  decision  differ- 
ent from  that  which  the  legislature  of  the  State  has 
prescribed  for  State  courts  in  similar  cases.  (Robin- 
son V.  Mandell,  3  Cliff.  169;  Fed.  Cas.  No.  11959.)  A 
husband  is  a  competent  witness  to  testify  as  to  a 
claim  in  favor  of  his  wife  (In  re  Campbell,  3  Hughes, 
276;  Fed.  Cas.  No.  2348;  Green  v.  Taylor,  3  Hughes, 
400;  Fed.  Cas.  No.  5761);  and  she  is  a  competent  wit- 
ness in  an  action  for  damages  for  injury  to  her  if 
made  so  under  the  laws  of  the  State  (Packet  Co.  v. 
Clough,  20  Wall.  528) ;  but  at  common  law  a  wife  can- 
not testify  in  favor  of  her  husband.  (Lucas  v.  Broolis, 
18  Wall.  436.)  This  section  applies  to  the  courts  of 
the  District  of  Columbia.  (Page  v.  Burnstine,  102  U. 
S.  664.)  No  witness  can  be  excluded  because  he  is  a 
party  to  or  interested  in  the  issue  tried.  (King  v. 
Worthington,  3  Morr.  Trans.  101;  Potter  v.  National 
Bank,  102  U.  S.  163;  Railroad  Co.  v.  Koontz,  104  U. 
S.  5;  Texas  v.  Chiles,  21  Wall.  488;  Nash  v.  Williams, 
20  Wall.  226;  N.  J.  R.  Co,  v.  Pollard,  22  Wall.  877; 
The  Argo,  2  Wheat  287.)  The  proviso  of  this  section 
excludes  only  parties  to  the  issue  from  testifying 
as  to  transactions  with  a  deceased  person  in  an  action 
against  his  executor,  etc.  (Potter  v.  Third  Nat.  Bank 
of  Chicago.  102  U.  S.  163;  Monongahela  Nat.  Bank  v. 
Jacobus,  109  U.  S.  275.)  In  an  action  against  executors 
for  advances  made  to  their  testator  on  goods  con- 


§  S75  EVIDENCE.  1016 

sisrned.  testimony  of  plaintiff  as  to  his  efforts  to  sell 
the  goods,  the  prices  obtained  and  the  correctness  of 
charges  made  should  not  have  been  excluded  under 
the  proviso  of  this  section.  (Steiner  v.  Eppinger,  23  U. 
S.  App.  344;  01  Fed.  Eep.  253.)  The  exception  can- 
not be  extended  so  as  to  exclude  parties  from  testify- 
ing in  their  own  behalf  against  assignees  in  bank- 
ruptcy. (Hobbs  V.  McLean,  117  U.  S.  567.)  In  the 
United  States  courts  no  witness  can  be  excluded  In 
any  civil  action  because  he  is  a  party  to  or  interested 
in  the  issue  tried.  (Potter  v.  Third  Nat.  Banli  of 
Chicago,  102  U.  S.  163;  Bradley  v.  United  States, 
104  U.  S.  442.)  And  this  rule  applies  to  trials  in  which 
the  United  States  is  a  party.  (Green  v.  United  States, 
9  Wall.  (155.)  Parties  to  the  record  may  testify  lllie 
other  witnesses,  either  orally  or  by  deposition.  (Nash 
V.  Williams,  20  W^ll.  226.)  Their  testimony,  in  a 
proper  case,  may  be  taken  by  depositions  de  bene 
esse  (Nash  v.  Williams,  20  Wall.  220;  New  Jersey  R. 
R.  &  Trans.  Co.  v.  Pollard,  22  Wall.  341;  Lowiy  v, 
Kusworm,  66  Fed.  Rep.  538);  and  the  deposition  of 
one  party  may  be  taken  in  behalf  of  another.  (Texas 
V.  Chiles,  21  Wall.  488.)  Under  section  34  of  the  ju- 
diciary act,  a  party  to  a  suit  in  the  circuit  court  in 
Ohio  must  be  admitted  as  a  witness  in  his  own  be- 
half, being  competent  as  such  in  the  State  courts. 
(Wright  V.  Bales,  2  Black,  535;  Vance  v.  Campbell,  1 
Black,  427;  Ryan  v.  Bindley,  1  Wall.  66.)  This  sec- 
tion, relating  to  the  competency  of  parties  as  wit- 
nesses, applies  to  the  District  of  Columbia  as  fully  as 
to  the  circuit  and  district  courts  of  the  United  States. 
(Page  v.  Burnstine,  102  U.  S.  064,  cited  in  McAllister 
v.  United  States,  141  U.  S.  174.)  Though  bills  of  dis- 
covery are  not  now  as  necessarily  and  commonly  re- 
sorted to  as  formerly,  yet  discovery  is  still  permissi- 
ble. (National  etc.  Co.  v.  Interchangeable  etc.  Brake 
Beam  Co.,  83  Fed.  Rep.  26.) 


1017  EVIDENCE.  §  375 

Parties  to  suit.— A  party  merely  having  an  Interest 
in  the  suit  is  a  competent  witness,  although  one  of 
the  pax'ties  is  an  executor  (Potter  v.  Third  Nat.  Bank, 
13  Chic.  L.  N.  102);  but  where  an  administrator  is  a 
party,  the  opposite  party  is  not  competent  to  testify 
unless  called  by  the  administrator  or  requii-ed  to  tes- 
tify by  the  court.  (James  v.  Atlantic  Delaine  Co.,  3 
Cliff.  614;  Fed.  Cas.  No.  7177.)  The  opposite  party 
is  that  party  against  whom  the  evidence  is  sought 
to  be  used.  (Eslava  v.  Mazauge,  1  Woods,  623;  Fed. 
Cas.  No.  4527.)  This  section  does  not  contemplate  an 
ex  parte  order  permitting  a  party  to  testify.  (Eslava 
V.  Mazauge,  1  Woods,  623;  Fed.  Cas.  No.  4527.)  A 
bill  in  equity  for  a  discovery  merely  is  unnecessary, 
as  a  party  may  be  examined  as  a  witness  (Heath  v. 
Erie  Eailway  Co.,  9  Blatchf.  316;  Fed.  Cas.  No.  6307); 
and  admissions  of  a  party  are  competent  against  him, 
although  he  testified  in  the  case,  and  was  not  asked 
whether  he  made  them  or  not.  (The  Stranger,  1 
Brown  Adm.  281;  Fed.  Cas.  No.  13525.)  It  is  for  the 
court  to  suggest  that  a  party  be  called  in  special 
cases.  (Eslava  v.  Mazauge,  1  Woods,  623;  Fed.  Cas. 
No.  4527.)  If  a  party  dies  after  his  testimony  has 
been  taken,  the  adverse  party  may  be  examined  if  the 
administrator  insists.  (Mumm  v.  Owens,  2  Dill.  475; 
Fed.  Cas.  No.  9919.  See  Jerman  v.  Stewart,  12  Fed. 
Eep.  275.)  Congress  intended  no  more  than  to  restore 
the  common-law  rule  of  evidence.  (United  States  v. 
Clark,  96  U.  S.  42.)  A  party  interested  in  the  issue 
but  not  a  party  to  the  suit  is  competent  to  testify  as 
to  statements  of  the  testator.  (Porter  v.  Nat.  Bank, 
102  U.  S.  163.) 

State  laws  followed  as  to  competency  of  witnesses. 
—Under  the  last  clause  of  this  section  a  State  statute 
prohibiting  physicians  and  others  from  testifying  as 
to  confidential  communications  made  to  them  in  a 
professional  capacity  is  binding  upon  a  Federal  court 


§  376  EVIDENCE.  101& 

sitting  within  that  State.  (Mutual  Benefit  Life  Ins. 
Co.  V.  Robinson,  19  U.  S.  App.  266;  58  Fed.  Rep. 
723.)  The  provision  of  the  section  that  the  laws  of 
the  State  as  to  competency  of  witnesses  shall  be  con- 
trolling has  no  application  to  criminal  trials.  (Logan 
V.  United  States,  144  U.  S.  2G3;  United  States  v.  Hall. 
53  Fed.  Rep.  352.)  In  the  absence  of  special  provi- 
sion by  Congress,  the  competency  of  witnesses  in 
criminal  cases  is  to  be  determined  by  the  law  of  the 
State  as  it  existed  when  the  judiciary  act  of  1789  was 
passed.  (United  States  v.  Hall,  53  Fed.  Rep.  352.) 
This  section  contains  the  whole  law  governing  the 
courts  of  the  United  States  in  respect  to  the  compe- 
tency as  witnesses  of  interested  parties,  and  no  State 
statute  can  annex  any  further  qualifications  to  its 
provisions.  (De  B^umont  v.  Webster,  71  Fed.  Rep. 
226.)  A  provision  in  a  State  statute  excluding  as 
against  the  heir-  or  representative  of  a  decedent  the 
testimony  of  one  who  has  acted  as  au  agent  in  mak- 
ing or  continuing  a  contract  with  such  decedent  is 
binding  on  a  Federal  court.  (Continental  Nat.  Bank 
T.  Heilman,  81  Fed.  Rep.  36.) 

§  376.  Defendants  in  criminal  cases  as  wit- 
nesses.— That  in  the  trial  of  all  iudictnieuts,  infor- 
mations, complaints,  and  other  proceedings  against 
persons  charged  with  the  commission  of  crimes, 
offenses,  and  misdemeanors  in  the  United  States 
courts,  territorial  courts,  and  courts-martial,  and 
courts  of  inquiry,  in  any  State  or  Territory,  includ- 
ing the  District  of  Columbia,  the  person  so  charged 
shall,  at  his  own  request,  but  not  otherwise,  be  a 
competent  witness.  And  his  failure  to  make  such 
request  shall  not  create  any  presumption  against 
him.     (20  U.  S.  Stats.  30.) 


1019  EVIDENCE.  §§  377-378 

§  377.  Testimony  before  Congress. — No  testi- 
mony given  by  a  witness  before  either  house,  or 
before  any  committee  of  either  house  of  Congress, 
shall  be  used  as  evidence  in  any  criminal  proceed- 
ing against  him  in  any  court,  except  in  a  prosecu- 
tion for  perjury  committed  in  giving  such  testi- 
mony. But  an  official  paper  or  record  produced 
by  him  is  not  within  the  said  privilege.  (Eev. 
Stats,  sec.  859.) 

§  378.  Pleadings,  disclosures,  etc. — No  plead- 
ing of  a  party,  nor  any  discovery  or  evidence  ob- 
tained from  a  party  or  witness  by  means  of  a  ju- 
dicial proceeding  in  this  or  any  foreign  country, 
shall  be  given  in  evidence,  or  in  any  manner  used 
against  him  or  his  property  or  estate,  in  any  court 
of  the  United  States,  in  any  criminal  proceeding, 
or  for  the  enforcement  of  any  penalty  or  forfeit- 
ure; provided,  that  this  section  shall  not  exempt 
any  party  or  witness  from  prosecution  and  punish- 
ment for  perjury  committed  in  discovering  or  tes- 
tifying as  aforesaid.     (Rev.  Stats,  sec.  860.) 

Note.— Section  partly  repealed  by  act  of  June  22, 
1874,  sec.  5  (18  Stats.  18G).  (United  States  v.  Three 
Tons,  6  Biss.  379;  Fed.  Cas.  No.  16515;  United  States 
V.  Distillery.  G  Biss.  483;  Fed.  Cas.  No.  1496fi.)  The 
books  and  papers  of  a  party  talven  from  him  are  com- 
petent evidence  against  him  (United  States  v.  Distil- 
lery, 1  Hushes,  533:  Fed.  Cas.  No.  14961;  United 
States  V.  Hughes,  12  Blatchf.  553;  Fed.  Cas.  No. 
15417);  but  he  cannot  be  required  to  produce  the 
books  and  papers  which  will  subject  him  to  the  pen- 
alty. (Johnson  v.  Donaldson.  3  Fed.  Rep.  22;  18 
Blatchf.  287.)     An  affidavit   made   by  defendant  to 


§§379-381  EVIDENCE.  102() 

procure  the  summoning  and  payment  by  the  United 
States  of  witnesses  in  his  behalf  is  not  a  pleading  of 
defendant  nor  a  discovery  or  evidence  obtained  from 
him  by  a  judicial  proceeding  vpithin  this  section, 
(Tucker  v.  United  States,  151  U.  S.  164.)  The  provi- 
sion of  the  above  section  does  not  neutralize  or  mod- 
ify the  right  of  protection  secured  to  the  witness  by 
the  fifth  amendment  to  the  constitution.  (Ex  parte 
Irvine,  74  Fed.  Eep.  955.) 

§  379.     Proof    in    common-law    actions. — The 

mode  of  proof  in  the  trial  of  actions  at  common 
law  shall  be  by  oral  testimony  and  examination  of 
witnesses  in  open  court,  except  as  hereinafter  pro- 
vided.    (Rev.  Stats,  sec.  861.) 

Note.— Open  court  means  in  presence  of  the  court 
and  jury  at  the  trial.  (Beardsley  v.  Littell,  14 
Blatchf.  102;  Fed.  Cas.  No.  11S5.)  This  section  does 
not  refer  to  discovery.  (Bryant  v.  Leyland,  6  Fed. 
Rep.  125.     See  Ex  parte  Fisk,   113  U.   S.  713.) 

§  380.  Proof  in  equity  and  admiralty  causes. — 
The  mode  of  proof  in  causes  of  equity  and  of  ad- 
miralty and  maritime  jurisdiction  shall  be  accord- 
ing to  rules  now  or  hereafter  prescribed  by  the  su- 
preme court,  except  as  herein  especially  provided. 
(Rev.  Stats,  sec.  8G2.) 

Note.— This  section  does  not  expressly  repeal  the 
act  (1  Stat.  8S)  in  relation  to  oral  examination  of  wit- 
nesses.    (Blease  v.  Garlington,  92  U.  S.  1.) 

^  381.     Notaries     may    take    depositions,    ac- 
knowledgments, etc. — Notaries  public  of  the  sev-     * 
era]  States,  Territories,  and  the  District  of  Colum-     ^ 
bia  are  hereby  authorized  to  take  depositions,  and 


1021  EVIDENCE.  §  381a 

do  all  other  acts  in  relation  to  taking  testimony  to 
be  used  in  tlie  courts  of  the  United  States,  take 
acknowledgments  and  affidavits  in  the  same  man- 
ner and  with  the  same  eft'ect  as  commissioners  of 
the  United  States  circuit  court  may  now  lawfully 
take  or  do.     (1876;  19  U.  S.  Stats.  206.) 

§  381  a.     Depositions  may  follow  State  usa^e. — • 

In  addition  to  the  mode  of  taking  the  depositions 
of  witnesses  in  causes  pending  at  law  or  equity  in 
the  district  and  circuit  courts  of  the  United  States, 
it  shall  be  lawful  to  take  the  depositions  or  testi- 
mony of  witnesses  in  the  mode  prescribed  by  the 
laws  of  the  State  in  which  the  courts  are  held. 
(27  U.  S.  Stats.  7.) 

Taking  depositions  according  to  State  practice.— 
This  section  does  not  extend  the  right  to  examine 
parties  to  the  cause  in  advance  of  trial.  It  only  af- 
fects the  mode  of  making  the  examination.  (Despeaux 
V.  Pennsylvania  R.  Co.,  81  Fed.  Rep.  897.)  This  sec- 
tion adopts  the  State  practice  as  to  the  manner  of  tak- 
ing depositions,  and  does  not  in  connection  with  a 
State  statute  authorize  the  taking  of  defendant's  dep- 
osition before  trial,  in  the  absence  of  any  of  the 
grounds  therefor  prescribed  by  the  Revised  Statutes, 
sees.  8C)3,  866.  (Shellabarger  v.  Oliver,  64  Fed.  Rep. 
306.)  This  section  merely  provides  an  additional 
mode  of  taking  depositions  of  witnesses  and  obtain- 
ing answers  on  interrogatories  in  the  cases  ah'eady 
authorized,  and  did  not  confer  additional  rights  to  ob- 
tain proofs  by  interrogatories  addressed  to  the  ad- 
verse party  in  actions  of  law  under  the  provisions  of 
State  statutes.  (National  Cash  Register  Co.  v.  Le- 
land,  77  Fed.  Rep.  242.)  This  section  does  not  author- 
ize the  admission  of  testimony  found  in  the  steno- 

Fed.  Vroc— 86. 


§  382  EVIDENCE.  1022 

graphic  notes  of  a  former  trial,  where  the  laws  of  the 
State  in  which  the  court  is  held  allows  it.  (Mulcahey 
V.  Lake  Erie  &  W.  R.  Co.,  69  Fed.  Rep.  172.) 

§  382.  Depositions  de  bene  esse. — The  testi- 
mony of  any  witness  may  be  taken  in  any  civil 
cause  depending  in  a  district  or  circuit  court  by 
deposition  de  bene  esse,  when  the  witness  lives  at 
a  greater  distance  from  the  place  of  trial  than  one 
hundred  miles,  or  is  bound  on  a  voyage  to  sea,  or 
is  about  to  go  out  of  the  United  States,  or  out  of 
the  district  in  which  the  case  is  to  be  tried,  and 
to  a  greater  distance  than  one  hundred  miles  from 
the  place  of  trial,  before  the  time  of  trial,  or  when 
he  is  ancient  and  infirm.  The  deposition  may 
be  taken  before 'any  judge  of  any  court  of  the 
United  States,  or  any  commissioner  of  a  circuit 
court,  or  any  clerk  of  a  district  or  circuit  court, 
or  any  chancellor,  justice,  or  judge  of  a  supreme 
or  a  superior  court,  mayor  or  chief  magistrate  of 
a  city,  judge  of  a  county  court  or  court  of  com- 
mon pleas  of  any  of  the  United  States,  or  any 
notary  public,  not  being  of  counsel  or  attorney  to 
either  of  the  parties,  nor  interested  in  the  event 
of  the  cause.  Keasonable  notice  must  first  be 
given  in  writing  by  the  party  or  his  attorney  pro- 
posing to  take  such  deposition,  to  the  opposite 
party  or  his  attorney  of  record,  as  either  may  be 
nearest,  which  notice  shall  state  the  name  of  the 
witness,  and  the  time  and  place  of  the  taking  of  his 
deposition;  and  in  all  cases  in  rem,  the  person  hav- 
ing the  agency  or  possession  of  the  property  at 
the  time  of  seizure  shall  be  deemed  the  adverse 


1023  EVIDENCE.  §  382 

party,  until  a  claim  shall  have  been  put  in;  and 
whenever,  by  reason  of  the  absence  from  the  dis- 
trict and  want  of  an  attorney  of  record  or  other 
reason,  the  giving  of  the  notice  herein  required 
shall  be  impracticable,  it  shall  be  lawful  to  take 
such  depositions  as  there  shall  be  urgent  neces- 
sity for  taJiing,  upon  such  notice  as  any  judge  au- 
thorized to  hold  courts  in  such  circuit  or  district 
shall  think  reasonable  and  direct.  Any  person 
may  be  compelled  to  appear  and  depose  as  pro- 
vided by  this  section,  in  the  same  manner  as  wit- 
nesses may  be  compelled  to  appear  and  testify  in 
court.     (Rev.  Stats,  sec.  863.) 

Conditions  under  which  taken. — The  conditions  un- 
der which  a  party  is  permitted,  and  a  magistrate  au- 
thorized, to  talie  depositions  de  bene  esse  under  the 
act  of  1789  are:  (1)  that  the  witness  lives  at  a  greater 
distance  from  the  place  of  trial  than  one  hundred 
miles;  (2)  or  is  bound  on  a  voyage  to  sea;  (3)  or  is 
about  to  go  out  of  the  United  States;  (4)  or  out  of  such 
district  to  a  greater  distance  from  the  place  of  trial 
than  one  hundred  miles,  before  the  time  of  the  trial; 
(5)  or  is  ancient  or  very  infirm.  (.Harris  v.  Wall,  7 
How.  693;  Patapsco  Ins.  Co.  v.  Southgate,  5  Pet. 
604.)  The  liability  of  a  witness  who  is  a  seaman  on 
board  a  gunboat,  to  be  ordered  out  of  the  reach  of  the 
court,  is  not  a  sufficient  cause  for  taking  a  deposition 
de  bene  esse,  under  the  judiciary  act  of  17S9.  (The 
Samuel,  1  Wheat.  9.)  This  section  applies  to  equity 
as  well  as  to  common-law  causes.  (Stegner  v.  Blake, 
36  Fed.  Rep.  183.)  A  witness  "lives"  where  he  can  be 
found,  and  is  sojourning,  residing,  or  abiding  for  his 
health  or  any  other  lawful  purpose.  (Mutual  Benefit 
Life  Ins.  Co.  v.  Eobisou,  19  U.  S.  App.  2GG;  58  Fed. 
Hep.  723.) 


§  382  EVIDENCE.  1024 

To  what  applies.— The  provisions  of  this  section  do 
not  apply  to  depositions  taken  under  a  rule  of  court 
(Banert  v.   Day,  3  Wash.  C.  C.  243;  Fed.  Cas.  No. 
836) ;  nor  to  cases  pending  in  the  supreme  court.     (The 
Argo,  2  Wheat.  287;  The  London  Facliet,  2  Wheat. 
371.)     The  provisions  of  this  and  the  succeeding  sec- 
tion apply  to  the  talking  of  depositions  within  the 
United   States,   and  have  no  application   to   foreign 
countries.     (Bird  v.   Halsy,  87  Fed.   Kep.  671.)     The 
court  may  issue  a  subpoena  duces  tecum  to  compel 
the  production  of  books  and  papers  (Ex  parte  Peck, 
3  Blatchf.  113;  Fed.  Cas.  No.  10885;  U.  S.  v.  Tilden, 
10  Ben.  566;  Fed.  Cas.  No.  16522);  but  not  for  the  pur- 
pose merely  to  refresh  the  memory  of  the  witness. 
(Lulled  States  v.  Tilden,  10  Ben.  566;  Fed.  Cas.  No. 
16522.)    The  provision  for  taking  depositions  de  bene 
esse  is  still  in  force,  the  mode  being  that  provided  by 
equity,  rule  67.     (Bischoftscheim  v.  Baltzer,  10  Fed. 
Rep.  1.)     The  conditions  under  which  a  deposition  de 
bene  esse  may  be  taken  are,  first,  that  the  witness 
lives  more  than  one  hundred  miles  distant;  second,  or 
is  bound  on  a  sea  voyage;  third,  or  is  about  to  leave 
the  United  States;  fourth,  or  about  to  go  out  of  the 
district  to  a  distance  greater  than  one  hundred  miles; 
lifth,  or  is  very  old  or  very  infirm.     (Harris  v.  Wall, 
7  How.  693.)     It  may  be  taken  out  of  the  district  as 
well  as  within  it  (i'atapsco  Ins.  Co.  v,  Southgate,  5 
Pet.  604;  but  see  Evaus  v.  Hettick,  3  Wash.  C.  C.  408; 
Fed.  Cas.  No.  4562;  Bleecker  v.  Bond,  3  Wash.  C.  C. 
529;  Fed.    Cas.    No.    1534;  United    States  v.  Tilden, 
25    Int.     Rev.    Rec.    352;    Ex    parte    Humphrey,    2 
Blatchf.    228;    Fed.    Cas.    No.    6^67);   and    a    second 
deposition  of  the  same  witness  may  be  taken  with- 
out  an    order    of    court.      (Cornett    r.    Williams,    20 
Wall.  226.)     Before  the  subpoena  is  issued  evidence 
should  be  produced  to  show  that  the  case  is  one  In 
which    such    examination    can  be    had.     (Ex    parte 


1025  EVIDENCE.  §  383 

Peck.  3  Blatchf.  113;  Fed.  Cas.  No.  10885.)  De- 
fendant may  examine  plaintiff  de  bene  esse,  even  be- 
fore Issue  joined,  where  plaintiff  resides  out  of  the 
district  and  more  than  one  hundred  miles  from  the 
place  of  trial.  (Lowrey  v.  Kusworm,  GG  Fed.  Rep. 
539.)  A  witness  casually  absent  cannot  be  compelled 
to  appear  and  testify  at  the  place  where  he  is  so- 
journing. (Ex  parte  Humphrey,  2  Blatchf.  228;  Fed, 
Cas.  No.  G867.)  So  if  he  resides  more  than  one  hun- 
dred miles  distant  he  cannot  be  compelled  to  testify 
before  an  officer  in  the  district  where  he  resides. 
(Henry  v.  Ricketts,  1  Cranch  C.  C.  580;  Fed.  Cas. 
No.  6386.)  The  liability  of  a  witness  to  be  ordered 
out  of  the  reach  of  the  court  is  not  sufficient  for  tak- 
ing a  deposition  de  bene  esse.  (The  Samuel,  1  Wheat. 
9.)  A  party  may  apply  for  a  dedimus,  and  cause  tes- 
timony to  be  taken  of  the  dedimus  so  stated,  orally. 
(Egbert  v.  Citizens'  Ins.  Co.,  7  Fed.  Eep.  51;  2  Mc- 
Crary,  3SG.)  A  commissioner  under  a  dedimus  potes-"' 
tatem  may  be  an  officer  of  any  kind,  or  any  one  not 
an  officei*,  and  is  not  within  this  section.  (Jerman  v. 
Stewart,  12  Fed.  Rep.  273.)  A  deposition  is  admissi- 
ble in  evidence  in  a  s'uit  brought  by  the  United  States 
under  the  contract  labor  law.  (Moller  v.  United 
States,  13  U.  S.  App.  472;  57  Fed.  Rep.  490.)  A  deposi- 
tion properly  taken  under  this  section  will  not  be  sup- 
pressed upon  the  sole  ground  that  it  was  taken  during 
a  term  at  which  the  case  might  be  tried.  (Union  Pac. 
Ry.  Co.  V.  Reese,  15  U.  S.  App.  92;  56  Fed.  Rep.  288). 
The  authority  to  take  testimony  de  bene  esse  must  be 
strictly  construed,  and  all  requisites  of  law  must  be 
complied  with  before  such  testimony  is  admissible 
(Bell  V.  Morrison,  1  Fet.  351;  Harris  v.  Wall,  7  How. 
693;  Carrington  v.  Stimson,  1  Curt.  437;  Fed.  Cas.  No. 
2450;  Allen  v.  Blunt,  2  Wood.  &  M.  121;  Fed.  Cas.  No. 
217;  Jones  v.  Neale,  2  Mart.  (N.  C.)  81);  1  Hughes, 
268;    Fed.    Cas.    No.    7483);   and    there    must   be   di- 


§  383  EVIDENCE.  1026 

rect  proof  that  the  requirements  of  the  statute 
were  complied  with.  (Bell  v.  Morrison,  1  Pet. 
351.)  Depositions  not  taken  according  to  the  rules 
of  law  of  the  Federal  courts  are  not  admissible, 
though  taken  according  to  the  rules  of  practice  of  the 
State  courts.  (Evans  v.  Eaton,  7  Wheat.  35G;  Evana 
V.  Hettick,  3  Wash.  C.  C.  408;  Fed.  Cas.  No.  4562.) 
They  cannot  be  used  in  a  case  in  equity  (Walker  v. 
Parker,  5  Cranch  C.  C.  639;  Fed.  Cas.  No.  17082);  as 
under  this  section  they  can  be  taken  without  a  com- 
mission. (Pettiboue  v.  Derringer,  4  Wash.  C.  C.  215; 
Fed.  Cas.  No.  11043.)  The  provisions  of  this  section 
should  never  be  resorted  to,  except  in  cases  of  abso- 
lute necessity.  (Walsh  v.  Rogers,  13  How.  283.)  It 
may  be  taken  before  a  probate  court  if  it  is  a  coui't  of 
record  (Fowler  v.  Merrill,  11  How.  375);  or  before 
any  county  judge  .(Voce  v.  Lawrence,  4  McLean,  203; 
Fed.  Cas.  No.  16979);  or  before  a  commissioner  of  the 
circuit  court  (Whitney  v.  Huntt,  5  Cranch  C.  C.  120; 
Fed.  Cas.  No.  17589);  or  a  notary  public  (Dinsmore 
V.  Maroney,  4  Blatchf,  416;  Fed.  Cas.  No.  3020);  but 
not  before  a  township  justice  (Shutte  v.  Thompson, 
15  Wall.  151);  or  a  judge  of  a  county  commissioner's 
court  (Garey  v.  Union  Bank,  3  Cranch  C.  C.  91;  Fed. 
Cas.  No.  5241);  or  a  judge  of  the  city  court.  (Fore- 
man V.  Holmead,  5  Cranch  C.  C.  162;  Fed.  Cas.  No. 
4935.)  A  commissioner  cannot  issue  the  writ  of  ha- 
beas corpus  for  the  purpose  of  taking  the  deposition 
of  the  prisoner.  (Ex  parte  Barnes,  1  Sprague,  133; 
Fed.  Cas.  No.  1010.)  Depositions  de  bene  esse  taken 
pursuant  to  this  section  may  be  opened  before  the 
trial  by  order  of  court  upon  motion  of  one  party  and 
against  the  objection  of  the  other  party.  (United 
States  V.  Tilden,  10  Ben.  170;  Fed.  Cas.  No.  10520; 
see  United  States  v.  Hall,  44  Fed.  Rep.  883.)  A  depo- 
sition taken  under  this  section  cannot  be  used  against 
ol)jection,   when  it  appears  that  the  witness  is  ac- 


1027  EVIDENCE.  §  383 

tually  present  in  court,  ready  and  able  to  testify  if 
called.     (Whitford  v.  Clarli  County,  119  U.  S.  522.) 

Notice  to  adverse  party.— Reasonable  notice  must 
be  given  to  the  adverse  party  (Egbert  v.  Citizens'  Ins. 
Co.,  7  Fed.  Rep.  51);  talien  without  notice  to  the  ad- 
verse party  cannot  be  used  if  such  adverse  party  or 
his  attorney  is  within  one  hundred  miles  (The  Sailor's 
Bride,  1  Brown  Adm.  68;  Fed.  Cas.  No.  12220;  Pentle- 
ton  V.  Forbes,  1  Cranch  C.  C.  507;  Fed.  Cas.  No.  10966; 
Dunlop  V.  Monroe,  1  Cranch  C.  C.  536;  Fed.  Cas.  No. 
4167;  Allen  v.  Blunt,  2  Wood.  &  M.  121;  Fed.  Cas. 
No.  217);  or  if  the  adverse  party  is  temporarily  with- 
in that  distance.  (Dicli  v.  Runnels,  5  How.  7.)  What 
constitutes  reasonable  notice  depends  upon  such  cir- 
cumstances as  distance,  number  of  witnesses,  and  fa- 
cility of  communication  to  obtain  representation  at 
the  taking.  (American  Exch.  Nat.  Bank  v.  First  Nat. 
Bank,  82  Fed.  Rep.  901.)  If  a  known  attorney  is 
within  that  distance,  notice  must  be  given  to  him 
though  he  be  not  attorney  of  record  (Allen  v.  Blunt, 
2  Wood.  &  M.  121;  Fed.  Cas.  No.  217);  and  where 
there  is  an  attorney  of  record  notice  must  in  all  cases 
be  given  to  him  (Leiper  v.  Bickley,  1  Cranch  C.  C.  29; 
Fed.  Cas.  No.  8222;  Barrell  v.  Limington,  4  Cranch  0. 
C.  70;  Fed.  Cas.  No.  1040;  The  Argo,  2  Gall.  314;  Fed. 
Cas.  No.  517);  and  in  all  cases  where  the  United 
States  is  a  party,  notice  must  be  given  to  the  district 
attorney  (The  Argo,  2  Gall.  814;  P^ed.  Cas.  No.  517); 
but  if  neither  the  party  nor  his  attorney  are  within 
a  hundi-ed  miles  no  notice  need  be  given.  (Dick  v. 
Runnels.  5  How.  7;  Miller  v.  Young,  2  Cranch  o.  O. 
53;  Fed.  Cas.  No.  9596;  Voce  v.  Lawrence,  4  McLean, 
203;  Fed.  Cas.  No.  16979.)  Parol  evidence  is  admis- 
sible to  prove  the  party  or  his  attorney  was  within 
the  distance.  (Dick  v.  Runnels,  5  How.  7.)  The  no- 
tice should  be  given  by  the  party  proposing  to  take 


§  383  EVIDENCE.  1028 

the  deposition.  (Young  v.  Davidson,  5  Cranch  C.  C. 
515;  Fed.  Cas.  No.  18157.)  If  the  deposition  was 
talien  witliout  notice,  the  adverse  party  may  have  it 
taken  again  (Goodhue  v.  Bartlett,  5  McLean,  186; 
Fed.  Cas.  No.  5538);  or  if  he  objects  on  that  ground, 
the  party  who  offei-s  the  deposition  may  show 
that  neither  he  nor  his  attorney  were  within  one 
hundred  miles  at  the  time.  (fc>mith  v.  Coleman, 
2  Cranch  C.  O.  237;  Fed.  Cas.  No.  13029;  see  Brooks 
V.  Jenkins,  3  McLean,  432;  Fed.  Cas.  No.  1953.) 
If  the  certificate  states  facts  which  make  it  un- 
necessai*y  to  give  notice,  it  need  not  state  that 
those  facts  were  the  reason  no  notice  was  given. 
(Dinsmore  v.  Maroney,  4  Blatchf.  416;  Fed.  Cas. 
No.    3920;  see    Shutte    v.  Thompson,  15    Wall.  151.) 

What  notice  to  contain.— The  notice  should  show 
on  its  face  that  the  contingency  has  happened  which 
gives  the  right  to  the  party  to  take  the  deposition 
(Harris  v.  Wall,  7  How.  693;  but  see  Debutts  v,  Mc- 
Culloch,  1  Cranch  C.  C.  286;  Fed.  Oas.  No.  3718;  Sage 
V.  Tauszky,  6  Cent.  L.  J.  7;  Fed.  Cas.  No.  12214);  and 
the  time  and  place  of  taldng  the  deposition  (Dunlop 
V.  Munroe,  1  Cranch.  C.  C.  536;  Fed.  Cas.  No.  4167); 
and  the  name  of  the  witness  (Carrington  v.  Stimson, 
1  Curt.  437;  Fed.  Cas.  No.  2450);  and  if  if  notifies 
that  it  will  be  taken  between  certain  hours,  it  may 
be  taken  any  time  before  the  last  hour  named  (House 
v.  Cash,  2  Cranch  C.  C.  73;  Fed.  Cas.  No.  6736);  and 
an  hour's  notice  of  the  time  and  place,  under  special 
circumstances  is  sufficient  (Leiper  v.  Bickley,  1 
Cranch  C.  C.  29;  Fed.  Cas.  No.  8222;  Bowie  v.  Talbot, 
1  Cranch  C  C.  247;  Fed.  Cas.  No.  1732;  Atkinson  v. 
Glenn.  4  Cranch  C.  C.  134;  Fed.  Cas.  No.  610);  but 
if  the  notice  is  not  reasonable,  and  no  necessity  ex- 
ists for  a  short  notice,  the  deposition  cannot  be  read. 
(Jamieson  v.  Willis,  1  Cranch  G.  C.  566;  Fed.  Cas. 
No.  7204;  Renner  v.  Howland,  2  Cranch  C.  C.  441; 


1029  EVIDENCE.  §  383 

Fed.  Cas.  No.  11700.)  If  the  srurname  is  given  in  the 
caption  to  the  notice  and  deposition,  it  is  sufficient. 
(Claxton  V.  Adams,  1  McAr.  496.)  The  notice  need 
not  require  the  party  to  put  interrogatories.  (Bussard 
V.  Catalino,  2  Cranch  C.  C.  421;  Fed.  Cas.  No.  2228.) 

Service  of  notice.— The  service  of  the  notice  must 
be  personal,  as  no  substituted  service  is  authorized. 
(Carrington  v.  Stirason,  1  Curt.  437;  Fed.  Cas.  No. 
2450.)  If  served  by  the  marshal,  the  magistrate 
should  certify  thereto  (Han-is  v.  Wall,  7  How.  693); 
and  the  certificate  should  state  that  notice  was  given. 
(Jones  V.  Knowles,  1  Cranch  C.  C.  523;  Fed.  Cas. 
No.  7474.)  If  the  suit  is  instituted  against  several, 
if  no  notice  is  served  on  the  one  summoned,  it  should 
be  given  to  those  not  summoned.  (Brown  v.  Pratt, 
2  Cranch  C.  C.  253;  Fed.  Oas.  No.  2026.) 

Attacliment  of  witness.— Before  an  attachment 
will  be  granted  it  must  clearly  appear  that  the  com- 
missioner has  jurisdiction,  and  that  the  witness  re- 
sides more  than  one  hundred  miles  from  the  place 
of  trial  (Ex  parte  Peck.  3  Blatehf.  113;  Fed.  Cas.  No. 
10885);  and  that  the  facts  to  which  he  is  called  to 
testify  are  material  and  relevant  to  the  Issue.  (Ex 
parte  Peck,  3  Blatehf.  113;  Fed.  Cas.  No.  10885;  Ex 
parte  Judson,  3  Blatehf.  148;  Fed.  Cas.  No.  7563.) 
A  party  moving  for  an  attachment  must  file  affidavits 
showing  that  witness  has  committed  a  contempt,  but 
for  merely  refusing  to  answer  an  interrogatory,  an 
attachment  will  not  issue.  (Ex  parte  Judson,  3 
Blatehf.  148;  Fed.  Cas.  No.  7563.) 

§  383.     Mode  of  taking  depositions  de  bene  esse. 

— Every  person  deposing,  as  provided  in  the  pre- 
ceding section,  shall  be  cautioned  and  sworn  to 
testify  the  whole  truth,  and  carefully  examined. 


§  383  EVIDENCE.  1030 

His  testimony  shall  be  reduced  to  writing  by  the 
magistrate  taking  the  deposition,  or  by  himself  in 
the  magistrate's  presence,  and  by  no  other  person, 
and  shall,  after  it  has  been  reduced  to  writing,  be 
subscribed  by  the  deponent.  (Eev.  Stats,  sec. 
S64.) 

Examination  of  witness. — A  deposition  will  not  be 
suppressed,  although  witnesses  are  examined  on  the 
day  fixed  in  the  notice,  and  on  other  days,  to  keep 
the  notice  alive  till  other  witnesses  appear  (Sage  v. 
Tauszky,  6  Cent.  L.  J.  7;  Fed.  Cas.  No.  12214);  but 
if  the  notary  meets  on  Saturday,  adjourns  to  Sunday, 
and  then  to  Monday,  those  taken  on  Monday  will  be 
suppressed.  (Kirl<patrick  v.  Bait.  &  Ohio  R.  Co.,  24 
Pitts.  L.  J.  51;  Fed.  Cas.  No.  7847.)  Where  the  no- 
tice states  that  the  taking  will  be  adjourned  from 
day  to  day,  a  taking  on  a  regularly  adjourned  day  Is 
admissible.  (Knode  v.  Williamson,  17  Wall.  586.) 
If  taken  during  the  session  of  court,  it  is  the  duty 
of  the  party  and  his  counsel  to  be  in  court,  and  be 
ready  for  trial.  (Bell  v.  Nimmon,  4  McLean,  539; 
Fed.  Cas.  No.  1259;  Allen  v.  Blunt,  2  Wood  &  M.  121; 
Fed.  Cas.  No.  217.)  If  taken  when  the  attorney  will 
be  unable  to  reach  the  court  at  its  commencement, 
it  cannot  be  read.  (Bell  v.  Nimmon,  4  McLean,  539; 
Fed.  Cas.  No.  1259.)  The  commissioner  cannot  ex- 
clude evidence  on  the  ground  that  it  is  not  pertinent. 
(Ex  parte  Judson,  3  Blatchf.  148;  Fed.  Cas.  No.  7.";G3. 
See  Grand  Haven  First  Nat.  Bank  v.  Forest,  44  Fed. 
Rep.  246;  In  re  Thomas,  35  Fed.  Rep.  822.)  Cross- 
examination  of  a  witness  does  not  waive  objections 
to  his  competency.  (Mifflin  v.  Bingham,  1  Dall.  272), 
but  it  waives  exceptions  to  the  regularity  of  his 
deposition.  (Mechanics'  Bank  v.  Seaton,  1  Pet.  299.) 
Where  a  witness,  in  obedience  to  the  instructions  of 
his  counsel,  refuses  to  answer,  his  entire  deposition 


1031  EVIDENCE.  §  383 

will  be  stricken  from  the  files.  (Thompson  H.  El. 
Co.  V.  Jeffrey  Mfg.  Co.,  8.S  Fed.  Rep.  614;  Bird  v.  Hal- 
sey,  87  Fed.  Rep.  671.) 

Witness  to  be  sworn.— The  witness  may  be  sworn 
after  the  deposition  is  reduced  to  writing.  ^Tooker 
V.  Thompson,  3  McLean,  92;  Fed.  Cas.  No.  14097.)  It 
is  not  sutiicient  to  swear  him  to  tell  the  whole  truth 
touching  such  interrogatories  as  may  be  pa-opouud- 
ed;  he  must  be  sworn  to  tell  the  whole  truth  as  far 
as  he  knows  touching  the  matter  in  conti-oversy  be- 
tween the  parties  (Shutte  v.  Thompson,  15  Wall.  151; 
Pendleton  v.  Forbes,  1  Cranch  C.  C.  507;  Fed.  Cas. 
No.  10966;  Garrett  v.  Woodward,  2  Cranch  C.  C.  190; 
Fed.  Cas.  No.  5253;  Rainer  v.  Haynes,  Hemp.  689; 
Fed.  Cas.  No.  11.536;  Wilson  S.  M.  Co.  v.  Jackson,  1 
Hughes,  295;  Fed.  Cas.  No.  17853;  United  States  v. 
Smith,  4  Day,  121;  Fed.  Cas.  No.  16332);  and  if  prop- 
erly sworn,  it  is  not  necessary  that  he  be  cautioned 
(Brown  v.  Pratt,  2  Cranch  C.  C.  253;  Fed.  Cas.  No. 
2026;  Moore  v.  Nelson,  3  McLean,  383;  Fed.  Cas. 
No.  9791;  but  see  Luther  v.  The  Merritt  Hunt, 
Newb.  Adm.  4;  Fed.  Cas.  No.  8010);  but  a  certifi- 
cate that  he  Avas  cautioned,  examined,  and  sworn 
is  suflicient.  (Edmondsou  r.  Barrell,  2  Cranch  C.  G. 
228;  Fed.  Cas.  No.  4284.)  If  it  certifies  that  the 
witness  aflirms  from  conscientious  scruples  of  taking 
an  oath,  it  is  sufficient.  (Elliott  v.  Hayman,  2  Cranch 
C.  C.  678;  Fed.  Cas.  No.  4C88:  Wilson  S.  M.  Co.  v. 
Jackson,  1  Hughes,  295;  Fed.  Cas.  No.  17S53.) 

To  b3  reduced  to  writing.— The  deposition  must  be 
reduced  to  writing  by  the  magistrate  himself,  or  by 
the  witness.  (Bell  y.  Morrison,  1  Peters,  352;  Cook 
V.  Burnley,  11  Wall.  059;  Thorpe  v.  Simmons,  2 
Cranch  C.  C.  195;  Fed.  Cas.  No.  14007;  Rainer  v. 
Haynes,  Hemp.  6S9;  Fed.  Cas.  No.  11536;  Marstin  v. 
Mcliea,  Hemp.  688;  Fed  Cas.  No.  9141;  Petti  bone  v. 


§  383  EVIDENCE.  1032 

DeiTinger,  4  Wash.  C.  C.  21.5;  Fed.  Cas.  No.  11043.) 
It  must  appear  that  the  testimony  was  reduced  to 
writing  in  the  presence  of  the  magistrate.  (Edmond- 
son  V.  Barren,  2  Cranch  C.  C.  228;  Fed.  Cas.  No. 
4284;  Rainer  v.  Ilayues,  Hemp.  GS9;  Fed.  Cas.  No. 
11536.)  If  the  witness  copies  the  deposition  from  a 
paper  prepared  by  him,  it  is  sufficient.  (United 
States  V.  Smith,  4  Day,  121.)  The  deposition  must 
be  signed  by  the  witness.'  (ThoiT>e  v.  Simmons,  2 
Cranch  C.  C.  195;  Fed.  Cas.  No.  14007.)  A  deposition 
talien  down  stenogi*aphically  in  questions  and  an- 
swers and  not  reduced  to  writing  in  the  presence  of 
the  witness,  nor  read  over  to  or  by  him,  is  not  prop- 
erly talien  under  this  section,  and  is  not  admissible 
in  evidence  against  objections.  (Moller  v.  United 
States,  13  U.  S.  App.  472;  57  Fed.  Rep.  490.) 

Certificate  to  deposition.— The  act  of  Congress  re- 
quires the  deposition  to  be  certified  by  the  magistrate 
(Harris  v.  Wall,  7  How.  693);  and  the  certificate 
should  state  the  precise  caption  (Pentleton  v.  Forbes, 
1  Cranch  C.  C.  507;  Fed.  Cas.  No.  10966);  and  the 
place  where  the  deposition  is  taken  should  be  named 
(Toolcer  v.  Thompson,  3  McLean,  92;  Fed.  Cas.  No. 
14097);  and  the  court  in  which  the  case  is  pending 
(Van  Ness  v.  Heineke,  2  Cranch  C.  C.  259;  Fed.  Cas. 
No.  16S6o);  and  the  names  of  the  parties  to  the  suit 
(Peyton  v.  Yeitch,  2  Cranch  C.  C.  123;  Fed.  Cas.  No. 
11057;  Centre  v.  Keene,  2  Cranch  C.  C.  198;  Fed.  Cas. 
No.  2553;  Smith  v.  Coleman,  2  Cranch  C.  C.  237; 
Fed.  Cas.  No.  13029;  Waskern  v.  Diamond,  Hemp. 
701;  Fed.  Cas.  No.  1724S;  Allen  v.  Blunt,  2  Wood  & 
M.  131;  Fed.  Cas.  No.  217;  Buckingham  v.  Burgess, 
3  McLean,  36S;  Fed.  Cas.  No.  2(J89);  and  if  the  name 
stated  in  the  caption  is  correct,  an  error  in  stating  it 
in  the  body  of  the  deposition  will  not  vitiate  it  (Voce 
V.  Lawrence,  4  McLean,  203;  Fed.   Cas.  No.  16979); 


1033  EVIDENCE.  §  383 

and  it  may  be  read,  although  entitled  in  the  case 
against  one  defendant  alone.  (Pannill  v.  Elia-son,  3 
Cranch  C.  C.  .358;  Fed.  Cas.  No.  10707.)  If  the  dep- 
osition is  written  by  the  magistrate,  it  is  sufiicient, 
though  not  certified  to  have  been  written  in  pres- 
ence of  the  witness  (Van  Ness  v.  Heineke,  2  Cranch 
C.  C.  259;  Fed.  Cas.  No.  10866;  Vasse  v.  Smith,  2 
Cranch  C.  C.  31;  Fed.  Cas.  No.  1G896;  Centre  y. 
Keene,  2  Cranch  C.  C.  198;  Fed.  Cas.  No.  25^3);  and  if 
he  certifies  that  it  was  reduced  to  wi'iting  by  the 
witness  and  himself,  it  is  sufficient.  (Bussard  v. 
Catalino,  2  Cranch  C.  C.  421;  Fed.  Cas.  No.  2228.)  If 
the  signature  of  the  witness  is  on  the  deposition,  the 
certificate  is  evidence  that  he  signed  it.  (Voce  v. 
Lawrence,  4  McLean,  203;  Fed.  Cas.  No.  16979.)  The 
fact  that  the  witness  reduced  his  testimony  to  writ- 
ing in  the  presence  of  the  magistrate  may  be  proved 
by  parol  testimony.  (Vasse  v.  Smith,  2  Cranch  C.  C. 
31;  Fed.  Cas.  No.  16896.)  The  certificate  is  good  evi- 
dence of  the  facts  stated  therein  (Bell  v.  Morrison, 
1  Peters,  351;  Banks  v.  Miller.  1  Cranch  C.  C.  543; 
Fed.  Cas.  No.  963);  but  if  it  does  not  show  that  the 
requisites  of  the  statute  have  been  complied  with, 
it  cannot  be  read.  (Thorpe  v.  Simmons,  2  Cranch  C. 
C.  195;  Fed.  Cas.  No.  14007;  Luther  v.  The  Merritt 
Hunt,  Newb.  Adm.  4;  Fed.  Cas.  No.  8610.)  It  need 
not  state  that  the  magistrate  is  not  of  counsel  for 
either  party  and  not  interested  in  the  event  of  the 
cause.  (Miller  v.  Young.  2  Cranch  C.  C.  53;  Fed.  Cas. 
No.  9596;  Peyton  v.  Veitch,  2  Cranch  C.  C.  123;  Fed. 
Cas.  No.  11057.)  The  certificate  of  the  notary  that 
he  is  "not  of  counsel  nor  interested  in  any  manner 
whatever  in  this  cause"  is  sufficient.  (American 
Exch.  Nat.  Bank  v.  First  Nat.  Bank,  82  Fed.  Rep. 
96L)  It  is  not  necessary  that  it  should  appear  in 
the  deposition  or  certificate  that  the  witness  is  not 
a  resident  of  the  district.  (Sage  v.  Tauszky,  0  Cent. 
Fed.  froc— 87. 


^384  EVIDENCE.  1034 

L.  J.  7;  Fed.  Oas.  No.  12214.)  If  it  omits  to  state 
wlietlier  notice  was  given,  evidence  may  be  given  to 
prove  that  neither  the  adverse  party  nor  his  attorney 
were  within  the  distance  of  one  hundred  miles  (Trav- 
el's V.  Bell,  2  Cranch  G.  C.  IGO;  Fed.  Cas.  No.  1414U); 
but  the  certificate  that  witness  lives  at  a  gi'eater  dis- 
tance is  prima  facie  evidence  of  that  fact.  (Patapsco 
Ins.  Co.  V.  Southgate,  5  Pet.  604;  Merrill  v.  Dawson, 
Hemp.  563;  Fed.  Cas.  No.  9469;  Tooker  v.  Thompson,  3 
McLean,  92;  Fed.  Cas.  No.  14097.)  The  Avord  "lives" 
must  be  inserted,  as  it  cannot  be  supplied,  so  as  to 
show  that  witness  lives  more  than  one  hundred 
miles  from  the  place  of  trial.  (Dunke  v.  Worcester, 
5  Biss.  102;  Fed.  Cas.  No.  4162.)  The  officer  taking 
the  deposition  must  certify  each  item  of  costs  before 
him.  (Russell  v.  Ashley,  Hemp.  546;  Fed.  Cas.  No. 
12150.)  No  formal  certificate  is  necessary  to  be  at- 
tached to  exhibits  in  order  to  make  them  parts  of  the 
deposition  in  which  reference  is  made  to  them.  If 
the  indorsements  of  the  examining  commissioner  on 
the  exhibits  and  depositions  be  made  by  the  same 
person  and  the  exhibits  ai'e  so  marked  and  described 
by  the  commissioner*  that  identity  is  unmistakably  es- 
tablished, this  is  sufficient.  (Bird  v.  Halsey,  87  Fed. 
Eep.  671.) 

§  384.  Transmission  to  the  court  of  deposi- 
tions de  bene  esse.— Every  deposition  taken  un- 
der the  two  preceding  sections  shall  be  retained 
by  the  magistrate  taking  it  until  he  delivers  it  with 
his  own  hand  into  the  court  for  which  it  is  taken; 
or  it  shall,  together  with  a  certificate  of  the  rea- 
sons as  aforesaid  of  taking  it  and  of  the  notice,  if 
any,  given  to  the  .adverse  party,  be  by  him  sealed 
up  and  directed  to  such  court,  and  remain  under 
his  seal  until  opened  in  court.     But  unless  it  ap- 


10o5  EVIDENCE.  §  384 

pears  to  the  satisfaction  of  the  court  that  the  wit- 
ness is  then  dead,  or  gone  out  of  the  United  States, 
or  to  a  greater  distance  than  one  hundred  miles 
from  the  place  where  the  court  is  sitting,  or  that, 
by  reason  of  age,  sickness,  bodily  infirmity,  or 
imprisonment,  he  is  unable  to  travel  and  appear  at 
court,  such  deposition  shall  not  be  used  in  the 
cause.     (Eev.  Stats,  sec.  865.) 

Construction.— This  section  Is  not  to  be  construed 
as  changing  the  "construction  of  the  statute  which  it 
re-enacts,  in  respect  to  the  time  when  depositions  de 
bene  esse  may  be  opened.  (United  States  v.  Tilden, 
10  Ben.  170;  Fed.  Cas.  No.  16520.) 

Delivery,  how  made. — The  deposition  may  be  di- 
rected to  the  judge  of  the  court  (Thorp  v.  Orr,  2 
Cranch  C.  C.  335;  Fed.  Cas.  No.  14006);  or  to  the 
clerli.  (Whitney  v.  Huntt,  5  Crunch  C.  C.  120;  Fed. 
Cas.  No.  17589.)  If  sent  by  mail  the  officer  should 
certify  that  it  was  retained  until  it  was  seated  and 
sent  to  the  clerli.  (Shankwiljer  v.  Reading,  4  Mc- 
Lean, 240;  Fed.  Cas.  No.  12704.)  And  if  the  envelope 
is  sealed  and  the  name  of  the  officer  written  across 
the  seal,  it  is  sufficient  (Thorp  v.  Oit,  2  Cranch  C.  C. 
335;  Fed.  Cas.  No.  14000);  but  if  talien  by  the  clerli 
of  the  court,  it  need  not  be  sealed  up.  (Nelson  v. 
WoodrufC,  1  Blacli,  156.)  If  the  magistrate  does  not 
retain  it  until  he  delivers  it  into  court,  or  seals  and 
directs  it,  the  deposition  cannot  be  read.  (Jones  v. 
Neale,  1  Hughes,  268;  Fed.  Cas.  No.  7483.)  No  notice 
of  filing  need  be  given  to  a  party  who  linows  tliat 
a  deposition  has  been  given.  (Nelson  v.  Woodruff,  1 
Black,  156.)  Exhibits  properly  identified  as  a  part 
of  a  deposition  cannot  be  deprived  of  their  character 
as  part  of  the  depositions  because  they  are  for  con- 
venience or  for  any  other  reason  mailed  to  the  clerk 


§  384  EVIDENCE.  1036 

in  a  separate    package.     (Bird    v.   Halsey,  87    Fed. 
Rep.  671.) 

Deposition,  when  read.— A  deposition  de  bene  esse 
can  be  read   only  when  the  witness  liimself  is  un- 
obtainable (The  Sgimuel,  1  Wheat.  9;  Wood  v.  Kel- 
logg, 6  McLean,  44;  Fed.  Cas.  No.  17345),  unless  it  ap- 
pears   that   he   cannot    attend    pei-sonally   (Park   r. 
Willis,  1  Cranch  C.  C.  357;  Fed.  Cas.  No.  10716i;  and 
proof  of  that  fact  may  be  given  without  issuing  a 
subpoena.     (Park  v.  Willis,  1  Cranch  C.  C.  357;  Fed. 
Cas.  No.   10716;  Leatherben-y  v.   Radcliff,   5  Cranch 
C.  C.  550;  Fed.  Cas.  No.  8163;  but  see  Brown  v.  Gal- 
loway, Pet  C.  C.  291;  Fed.  Cas.  No.  2006.)    And  the 
party  offering  it  must  prove  diligence  in  endeavor- 
ing   to    procure    the  witness.     (Patapsco  Ins.  Co.  v. 
Southgate,  5  Pet.  604;  Park  v.  Willis,  1  Cranch  C.  C. 
357;    Fed.   Cas.    No.   10716;    Jones    v.    Greenolds,   1 
Cranch  C.  C.  339;  Fed.  Cas.  No.  7464;  Penn  v.  Ingra- 
ham,  2  Wash.  C.  C.  487;  Fed.  Cas.  No.  10944;  Ban- 
ert  V.  Day,  3  Wash.  C.   C.  243;  Fed.  Cas.  No.  836: 
Pettibone  v.  Derringer,  4  Wash.  C.  C.  215;  Fed.  Cas. 
No.    11043;   Read   v.    Bertrand,   4  Wash.    C.    C.   558; 
Fed.   Cas.   No.   11603.)     Where  a   party   knows   that 
the  witness  has  since  removed  within  reach  of  a  sub- 
poena,  he  is  bound  to  procure  his  personal  attend- 
ance.    (Patapsco   Ins.   Co.   v.   Southgate,   5   Pet.   604; 
Russell  V.  Ashley,  Hemp.  546;  Fed.  Cas.  No.  12150.) 
A  deposition  may  be  used  although  taken  from  the 
file  with  leave  of  court,  and  the  certificate  amended 
(Leatherberry  v.  Radcliffe,  5  Cranch  C.  C.  550;  Fed. 
Cas.  No.  8163);  but  if  opened  out  of  court,  without 
consent  of    the    adverse    party,  it    cannot    be    used 
(Beale    v.  Thompson,  8    Ci"anch,  70;    The  Roscius,  1 
Brown,  442;  Fed.  Cas.  No.  12042);  and  consent  out  of 
court  should  be  evidenced  by  a  writiug  duly  signed. 
(The  Roscius,  1  Brown,  442;  Fed.  Ca.s.  No.  12042.)     If 


1037  EVIDENCE.  §  384 

the  attorney  appears  and  cross-examines  the  witness, 
it  is  a  waiver  of  irregularity  in  the  notice  (Dinsmore 
V.  Maroney,  4  Blatchf.  416;  Fed.  Cas.  No.  3920),  and  of 
all  formal  objections.  (Shutte  v.  Thomp.son,  15  Wall. 
151;  United  States  v. One  Case.l  Paine,  400;  Fed.  Cas. 
No.  15924.)  Where  both  parties  have  examined  the 
witness,  one  party  has  no  right  to  direct  a  commis- 
sioner to  withhold  it  simply  because  the  testimony 
has  taken  him  by  surprise.  (Grand  Haven  First 
Nat  Bank  v.  Forest,  44  Fed.  Rep.  246.)  In  a  suit 
in  admiralty,  where  the  interpreter  whose  sei'vices 
were  necessary  refused  to  act  further,  and  another 
could  not  be  obtained  before  witness,  whose  deposi- 
tion was  being  taken  de  bene  esse,  left  the  port,  the 
part  of  deposition  taken  and  signed  by  the  witness 
is  not  admissible  on  the  trial.  (Schiaffino  v.  The 
Jacob  Brandow,  33  Fed.  Rep.  160.)  Where  a  deposi- 
tion has  been  read  in  evidence  vdthout  opposition, 
it  cannot  afterward  be  objected  to  as  being  irreg- 
ularly taken.  (Evans  v.  Hettich,  7  Wheat.  453; 
Brown  v.  Tarkington,  3  Wall.  377;  The  Georgia,  7 
Wall.  32.)  A  deposition  of  a  party  as  to  transactions 
with  another  party,  taken  while  the  latter  is  alive, 
may,  though  the  latter  dies  without  giving  his  dep- 
osition as  he  could  have  done,  be  used  when  the  suit 
is  revived  in  the  name  of  his  executors.  (McMullen 
V.  Ritchie,  64  Fed.  Rep.  253.) 

Certificate  of  reasons  for  taking. — A  sufficient 
cause  for  taking  the  deposition  cannot  be  proved  by 
parol  evidence.  (Wheaton  v.  Love,  1  Cranch  C.  C. 
451;  Fed.  Cas.  No.  17485.)  So  if  the  officer  does  not 
assign  a  sufficient  reason  for  taking  it,  it  will  be  sup- 
pressed. (Harris  v.  Wall,  7  How.  693;  Wheaton  v. 
Love,  1  Cranch  C.  C.  451;  Fed.  Cas.  No.  17485;  Jones 
V.  Knowles.  1  Cranch  C.  C.  523;  Fed.  Cas.  No.  7474; 
Shutte  V.  Tliompson,  15  Wall.  151;  Sage  v.  Tauszky,  6 
Cent.  L.  J.  7;  Fed.  Cas.  No.  12214;  Jones  v.  Neale,  2 


§  384  EVIDENCE.  1038 

Mart.  (N.  C.)  81;  Woodward  v.  Hall,  2  Cranch  C.  C. 
235;  Fed.  Cas.  No.  18005.)  The  certificate  and  seal 
of  a  notary  public  are  sufficient  proof  of  bis  author- 
ity. (Dinsniore  v.  Maroney,  4  Blatcbf.  416;  Fed. 
Cas.  No.  3920.)  And  so  of  a  mayor,  although  not 
certified  under  bis  seal.  (Price  v.  Morris,  5  McLean, 
4;  Fed.  Cas.  No.  11414.)  A  certificate  without  the 
official  seal  is  not  sufficient  where  be  has  an  official 
seal,  and  usually  certifies  his  official  acts.  (Paul  r. 
Lowry,  2  Cranch  C.  C.  628;  Fetl.  Cas.  No.  10S44.) 
The  appointment  of  a  commissioner  of  a  circuit  court 
need  not  be  authenticated  by  the  record  (Whitney  v. 
Huntt.  5  Cranch  C.  C.  120;  Fed.  Cas.  No.  17589);  it 
should  be  shown  by  a  certificate  of  the  clerk  and  of 
the  presiding  judge.  (Toolver  v.  Thompson,  3  Mc- 
Lean, 92;  Fed.  Cas.  No.  14097.)  And  the  fact  that 
he  who  certifies  to  a  deposition  is  an  officer  may  be 
proved  by  parol.  (Dunlop  v.  Monroe,  1  Cranch  C.  0. 
536;  Fed.  Cas.  No.  4167;  Paul  v.  Lowry,  2  CrancE 
O.  C.  628;  Fed.  Cas.  No.  10844.)  The  presumption 
is,  that  the  officer  talcing  the  deposition  is  the  proper 
officer.  (Vasse  v.  Smith,  2  Cranch  C.  C.  31;  Fed. 
Cas.  No.  16896;  Price  v.  Morris,  5  McLean,  4;  Fed. 
Cas.  No.  11414;  Ruggles  v.  Bucknor,  1  Paine,  358; 
Fed.  Cas.  No.  12115.) 

Objections  to  deposition.— Appearance  of  the  party 
or  his  attorney,  and  the  examination  or  cross-exam- 
ination of  the  witness  without  protest  or  in  silence, 
is  a  waiver  of  objection  to  formal  defects  (Shutte  v. 
Thompson,  15  Wall.  151;  Dinsmore  r.  Maroney,  4 
Blatchf.  416;  Fed.  Cas.  No.  3920);  if  read  in  evi- 
dence, it  is  too  late  to  object.  (Evans  v.  Hettlch. 
7  Wheat.  453;  Brown  v.  Parkington,  3  Wall.  377.) 
An  objection  on  account  of  formal  defects  must  be 
made  by  motion  to  suppress,  before  going  to  trial. 
(Claxton  V.  Adams,  1  McAr.  496.)    If  depositions  are 


J 


]0"9  EVIDENCE.  §  384 

made  without  notice,  the  court  may  allow  a  con- 
tinuance to  enable  the  advei-se  party  to  cross-exam- 
ine the  witness,  or  may  reject  his  testimony.  (Dade 
V.  Young,  1  Cranch  C.  C.  123;  Fed.  Oas.  No.  3534; 
Straas  v.  Marine  Ins.  Co.,  1  Cranch  C.  C.  343; 
Fed.  Cas.  No.  1351S;  Barrell  v.  Simonton,  3  Cranch 
C.  C.  GSl;  Fed.  Cas.  No.  1042;  Allen  v.  Blunt,  2 
Wood  &  M.  121;  Fed.  Cas.  No.  217.)  If  suppressed, 
the  case  may  be  continued  to  allow  of  the  taliing  of 
another.  (Moore  v.  Nelson,  3  McLean,  383;  Fed.  Cas. 
No.  9771;  Luther  v.  The  Merritt  Hunt,  Newb.  Adm. 
4;  Fed.  Cas.  No.  8610.)  A  waiver  of  all  objections 
operates  as  a  waiver  at  a  subsequent  trial  (Edmond- 
son  V.  Barrell,  2  Cranch  C.  C.  228;  Fed.  Cas.  No. 
4284);  and  although  waived  as  to  the  manner  and 
form  of  taking  it,  yet  it  must  be  returned  by  the 
magistrate,  in  conformity  with  this  section.  (Liv- 
ingston V.  Pratt,  Brown  Adm.  66;  Fed.  Cas.  No. 
8417.)  If  on  file  for  three  years,  it  cannot  be  exclud- 
ed on  the  ground  of  defect  on  the  certificate  after 
the  cause  is  set  down  for  hearing.  (Bank  v.  Ti-avers, 
4  Biss.  507;  Fed.  Cas.  No.  886.)  A  party  knowing  of 
the  incompetency  of  a  witness  waives  the  objection 
by  appearing  and  cross-examining  him,  but  not  if 
he  does  not  at  the  time  know  that  fact  (U.  S.  v.  One 
Case,  1  Taine,  400;  Fed.  Cas.  No.  15924);  but  the 
mere  presence  of  the  attorney  is  not  a  waiver. 
(Harris  v.  Wall,  7  How.  693.)  General  objections  to 
a  deposition  may  be  oveiTuled,  if  any  part  of  the 
deposition  appears  to  be  admissible  in  any  view  of 
the  case  (First  National  Bank  v.  Rush,  56  U.  S.  App. 
556;  85  Fed.  Rep.  539.)  Where  the  objecting  party 
has  consented  to  the  issuing  of  the  commission,  and 
practically  united  in  executing  it,  and  where  no 
notice  of  objections  are  given  until  after  trial,  in- 
formalities in  the  notice  to  take  and  certification  are 
"Vraived.     (Bird  v.  Halsy,  87  Fed.  Rep.  671.)    An  agi-ee- 


§  385  EVIDENCE.  1040 

ment  that  neither  party  will  take  abjection  to  the 
form  of  a  deposition  must  show  that  the  agreement 
was  made  with  special  reference  to  a  given  paper 
purporting  to  be  a  deposition.  (Lutcher  v.  United 
States,  72  Fed.  Rep.  9G8.)  Where  a  party  moves  be- 
fore the  commencement  of  a  trial  for  the  suppression 
of  the  deposition,  and  then  suffers  it  to  be  read  with- 
out objection,  he  cannot  avail  himself  of  the  previous 
exception  in  the  reviewing  court.  (Union  Pac.  Ky. 
Co.  V.  Reese,  15  U.  S.  App.  92;  56  Fed.  Rep.  288; 
Northern  Pac.  Ry.  Co.  v.  Urlin,  158  U.  S.  271.)  The 
whole  of  a  deposition  may  be  suppressed  on  the 
ground  that  a  witness  has  refused  to  answer  a  ma- 
terial question.  (Bird  v.  Halsey,  87  Fed.  Rep.  671.) 
A  motion  to  suppress  a  deposition  should  be  made 
before  a  case  is  called.     (Bibb  v.  Allen,  149  U.  S.  481.) 

§  385.  Dedimus  potestatem  and  in  perpetuam, 
etc. — In  any  case  where  it  is  necessary,  in  order  to 
prevent  a  failure  or  delay  of  justice,  any  of  the 
courts  of  the  United  States  may  grant  a,dedimus  po- 
tesiaiem  to  make  depositions  according  to  common 
usage;  and  any  circuit  court,  upon  application  to 
it  as  a  court  of  equity,  may,  according  to  the 
usages  of  chancery,  direct  depositions  to  be  taken 
in  perpeluam  rei  memoriam,  if  they  relate  to  any 
matters  that  may  be  cognizable  in  any  court  of  the 
United  States.  And  the  provisions  of  sections 
eight  hundred  and  sixty-three,  eight  hundred  and 
sixty-four,  and  eight  hundred  and  sixty-five  shall 
not  apply  to  any  deposition  to  be  taken  under  the 
authority  of  this  section.     (Eev.  Stats,  sec.  866.) 

Construction.— This  act.  being  in  derogation  of  the 
common  law,  should  be  strictly  constiiied.  (United 
States  V.  Parrott,  1  McAll.  447;  Fed.  Cas.  No.  15999.) 


1041  EVIDENCE.  §  385 

The  preceding  sections  relating  to  depositions  de 
bene  esse  do  not  apply  to  a  dedimus  potestatem. 
<Jones  V.  Oregon  Cent.  R.  R.  Co.,  3  Sawy.  523;  Fed. 
Cas.  No.  7486.) 

How  taken.— Depositions  may  be  taken  under  this 
section  "according  to  common-law  usages,"  which, 
as  to  suits  in  equity,  refers  to  the  practice  in  equity 
coiirts.  (Bischoffscheim  v.  Baltzer.  10  Fed.  Rep.  1; 
20  Blatchf.  229.)  It  is  not  talien  "according  to  com- 
mon-law usage,"  if  one  of  the  parties  writes  down  the 
answers  for  the  commissioner  in  the  absence  of  the 
other  party  to  the  suit.  (United  States  r.  Pings,  4 
Fed.  Rep.  714.)  The  common  usage  refers  to  practice 
under  state  laws  (Buddicum  v.  Kirk,  3  Craneh,  293); 
and  when  necessary  it  may  be  taken,  although  the 
State  law  does  not  allow  it.  (.Tones  v.  Oregon  Cent. 
R.  R.  Co.,  3  Sawy.  523;  Fed.  Cas.  No.  7486.)  A  com- 
mission may  be  granted  at  law,  and  there  is  no  need 
to  go  into  equity  therefor  (Peters  v.  Prevost,  1  Paine, 
64;  Fed.  Cas.  No.  11032),  and  the  practice  in  the 
State  courts  should  be  observed.  (Sutton  v.  Mande- 
ville,  1  Craneh  C.  C.  115;  Fed.  Cas.  No.  13650.)  A 
commission  will  not  be  issued  in  a  suit  at  law  if  the 
witness  lives  within  one  hundred  miles.  (Wellford 
V.  Miller.  1  Craneh  C.  C.  485;  Fed.  Cas.  No.  1738; 
Oustine  v.  Ringgold,  4  Craneh  C.  C.  5877;  Fed.  Cas. 
No.  7877;  Rhoades  v.  Selin,  4  Wash.  C.  C.  715;  Fed. 
Cas.  No.  11740.)  An  examiner  may  be  appointed  in 
an  equity  case  outside  as  well  as  inside  the  jurisdic- 
tion (N.  C.  Railroad  Co.  v.  Drew,  3  Woods,  692;  Fed. 
Cas.  No.  17434);  and  although  the  witness  lives  with- 
in the  distance  of  one  hundred  miles.  (Wellford  v. 
Miller,  1  Craneh  C.  C.  398;  Fed.  Cas.  No.  17090; 
Russell  v.  McLellan,  3  Wood.  &  M.  157;  Fed.  Cas. 
No.  12158.)  The  only  mode  in  which  a  deposition 
can  be  taken  in  a  foreign  country  is  under  a  commis- 


§  385  EVIDENCE.  1042 

sion  (Stein  v.  Bowman,  13  Peters,  209),  although  the 
witness  has  been  previously  examined  under  a  com- 
mission here.  ("Winthrop  v.  Union  Ins.  Co.,  2  Wash. 
C.  C.  7;  Fed.  Cas.  No.  17901.)  Depositions  under  a 
dedimus  potestatem  are  not  to  be  considered  as 
talven  de  bene  esse.  (Sargeant  v.  Biddle,  4  Wheat, 
508.) 

Application  for  commission. — An  application  must 
be  made  in  open  court,  and  not  at  chambers  (Peters 
V.  Prevost,  1  Paine,  64;  Fed.  Cas.  No.  11032);  and  It 
must  show  that  the  evidence  is  material.  (United 
States  V.  Pan-ott,  McAll.  447;  Fed.  Cas.  No.  15999.) 
It  is  not  granted,  of  course,  but  only  on  sufficient 
cause  shown  (United  States  v.  Parrott,  McAll.  447; 
Fed.  Cas.  No.  15999);  and  must  be  founded  on  affi- 
davit showing  it  to  be  necessary  to  the  justice  of 
the  case  (Sutton  v.  Mandeville,  1  Cranch  C.  C.  115; 
Fed.  Cas.  No.  13650);  but  it  need  not  designate  the 
place  at  which  the  deposition  is  to  be  talcen 
(Rhoadcs  v.  Selin,  4  Wash.  C.  C.  715;  Fed.  Cas.  No. 
11740);  but  if  it  designates  the  place  the  commission 
should  conform  to  it.  (Khoades  v.  Selin,  4  Wash. 
C.  C.  715;  Fed.  Cas.  No.  11740.)  It  may  be  made  to 
take  testimony  in  a  foreign  country,  although  ax 
war  with  this  country.  (Peters  v.  Prevost,  1  Paine, 
64;  Fed.  Cas.  No.  11032.)  The  notice  of  a  motion 
for  a  commission  may  be  served  on  the  attorney  of 
the  adverse  party.  (Potts  v.  Skinner,  1  Cranch  C.  C. 
57;  Fed.  Cas.  No.  11348;  Bowie  v.  Talbot,  1  Cranch 
C.  C.  247;  Fed.  Cas.  No.  1732;  Irving  v.  Sutton,  1 
Cranch  C.  C.  575;  Fed.  Cas.  No.  7078;  Wheaton  r. 
Love,  1  Cranch  C.  C.  429;  Fed.  Cas.  No.  17484;  Buddi- 
cum  V.  Kirk,  3  Cranch,  293.) 

Interrogatories— Practice. — A  copy  of  the  inter- 
rogatories and  written  notice  of  the  rule  and  iiie. 
names  of  the  commissioners  sliould  be  served  on  the 


1043  '  EVIDENCE.  §  385 

adverse  party  or  his  attorney.  (Fowler  v.  Merrill, 
11  How.  375;  Ehoades  v.  Selin,  4  Wash.  C.  C  715; 
Fed.  Cas.  No.  11740.)  The  interrogatories  and  eross- 
interx'ogatories  should  be  filed  in  court  before  issu- 
ing the  commission.  (Cunningham  v.  Otis,  1  Gall. 
1G3;  Fed.  Cas.  No.  34S5.)  The  practice  is  to  propose 
particular  interrogatories  about  matters  specially  in- 
quired into,  and  to  subjoin  a  general  interrogatory 
as  to  any  other  matter  material  to  the  party  propos- 
ing it.  (Rhoades  v.  Selin,  4  Wash.  C.  C.  715;  Fed. 
Cas.  No.  11740.)  Where  the  inteiTogatories  are  filed 
according  to  the  rules  of  court,  and  the  adverse 
party  fails  to  file  cross-interrogatories,  the  commis- 
sion may  be  issued  without  them  (The  Norway,  1 
Een.  493;  Fed.  Cas.  No.  10357),  and  without  notice. 
(Trevall  v.  Bache,  5  Cranch  C.  C.  4G3;  Fed.  Cas.  No. 
5113.)  Exceptions  intended  to  be  talien  to  any  par- 
ticular interrogatories  should  be  propounded  as  ob- 
jections before  the  commission  issues,  or  they  will 
be  deemed  waived  (Cocker  v.  F.  H.  &  B.  Co.,  1 
Story,  1G9;  Fed.  Cas.  No.  2930);  and  if  the  form  of 
the  inten'ogatories  cannot  be  agreed  on,  they  should 
be  referred  to  a  master  to  settle  the  form,  subject 
to  ultimate  review  on  appeal.  (Coclvcr  v.  F.  H.  & 
B.  Co.,  1  Story,  1G9;  Fed.  Cas.  No.  2930.)  An  irrele- 
vant interrogatoiry  will  be  sti'icken  out  before  the 
commission  issues.  (Coclcer  v.  F.  H.  &  B.  Co.,  1 
Story,  1G9;  Fed.  Cas.  No.  2930.)  Interrogatories 
should  be  confined  to  the  matters  set  up  in  the  bill, 
and  be  relevant  to  the  case.  (Gormully  &  Jeffery 
Mfg.  Co.  V.  Bretz,  04  Fed.  Rep.  612.)  The  rule  of 
practice  does  not  permit  the  plaintiff  in  an  action  at 
law  to  file  with  his  complaint  interrogatories  to  be 
answered  by  defendant.  (Tabor  v.  Indianapolis 
Journal  Newspaper  Co.,  66  Fed.  Rep.  423.) 

Notice  of  time  and  place.— Depositions  in  perpet- 
uam  rei  memoriam  cannot  be  taken  ex  parte  by  a 


g  385  EVIDENCE.  '  1044 

proceeding  in  equity  without  any  service  of  process 
upon  tlie  defendants  in  interest  tliough  they  are  out 
of  the  country.  (Green  v.  Campagnia  Generale,  82 
Fed.  Eep.  491.)  Notice  of  the  time  and  place  of 
talving  the  deposition  may  be  served  on  the  party  or 
his  attornej'.  (Fowler  v,  Merrill.  11  How.  375.)  11 
may  be  given  by  leaving  a  true  copy  thereof  with  a 
member  of  the  family.  (Fowler  v.  Merrill,  11  How. 
375.)  If  the  application  does  not  designate  the  place, 
the  commissioner  should  give  notice  to  the  advei-se 
party  (Knode  v.  Williamson,  17  Wall.  586;  Rhoades 
V.  Selin,  4  Wash.  C.  C.  715;  Fed.  Gas.  No.  17740);  but 
no  notice  need  be  given  to  a  party  who,  after  being 
duly  notified,  fails  to  file  cross-interrogatories. 
(Fowler  v.  Merrill,  11  How.  375.)  If  the  notice  is 
sent  by  mail,  it  is  not  sufficient,  if  not  received  until 
after  the  deposition  is  taken.  (Walker  v.  Parker,  5 
Cranch  C.  C.  G39;  Fed.  Gas.  No.  17082.)  If  notice  is 
received  or  waived,  the  attorney  cannot  afterward 
object  on  account  of  no  notice.     (Buddicum  v.  Kirk, 

3  Cl-anch.  293.)  An  hour's  notice  in  the  place  where 
the  attorney  resides  is  sufficient.  (Nicholls  v.  White. 
1  Granch  C.  G.  58;  Fed.  Gas.  No.  10235.)  An  affi- 
davit of  service  of  notice  need  not  state  that  the  per- 
son with  whom  a  copy  was  left  was  informed  of  the 
purport  of  the  notice.  (McGall  v.  Towers,  1  Granch 
G.  G.  41;  Fed.  Gas.  No.  .S(J74.) 

Authority  of  commissioner.— The  authority  of 
the  commissioner  is  special,  and  must  be  strictly 
pursued.  (Gupp  v.  Brown,  4  Dall.  410;  Armstrong  v. 
Brown,  1  AVash.  G.  G.  43;  Fed.  Gas.  No.  542;  Bou- 
doreau  v.  Montgomery,  4  Wash.  G.  C.  186;  Fed.  Gas. 
No.  1694.)  If  issued  to  several  commissioners,  yet 
if  it  confers  powers  upon  any  one  of  them,  a  deposi- 
tion taken  by  one  alone  may  be  read  (The  Griffin, 

4  Blatchf.  203;  Fed.  Gas.  No.  ,5814;  Lonsdale  v. 
Brown,  3  Wash.  C.  G.  404;  Fed.  Gas.  No.  8492);  but 


1045  EVIDENCE.  §  385 

if  taken  by  the  commissioner  in  conjunction  with  a 
person  not  named  in  the  commission,  it  cannot  be 
read.  (Willin^s  v.  Consequa,  Peters  C.  C.  301;  Fed. 
Gas.  No.  177t)7;  Banert  v.  Day,  3  Wash.  C.  G.  243; 
Fed.  Gas.  No.  836.)  Where  a  commission  is  issued  to 
sereral  commissioners,  and  executed  by  a  part  only, 
the  deposition  cannot  be  read.  (Gupp  v.  Brown,  4 
Dall.  410;  Armstrong  v.  Brown,  1  Wash.  G.  G.  43; 
Fed.  Gas.  No.  542;  Munns  v.  Dupont,  3  Wash.  O.  G. 
31;  Fed.  Gas.  No.  9926.)  The  commissioner  is  not 
the  agent  of  the  pai'ty  nominating  him.  (Gilpins  v. 
Gonsequa,  PeteTs  G.  G.  85;  Fed.  Gas.  No.  54-52.)  A 
deposition  taken  In  a  foreign  country  may  be  read, 
although  it  was  taken  by  a  judge  in  the  presence 
of  the  commissioner.  (Winthrop  v.  Union  Ins.  Go., 
2  Wash.  G.  C.  7;  Fed.  Gas.  No.  17901.) 

Issuance  of  commission. — A  commission  will  not 
be  issued  until  the  commissioners  are  named.  (Van- 
stophoi-st  V.  Maryland,  2  Dall.  401.)  If  issued  by 
consent  and  without  interrogatoi-ies,  the  deposition 
cannot  be  read  if  notice  was  not  given  of  the  time 
and  place  foT  taking  it.  (Dunlop  v.  Monroe,  1 
Granch  G.  C.  536;  Fed.  Gas.  No.  4167.)  If  taken  by 
one  party  it  may  be  read  by  the  adverse  party,  al- 
though the  notice  was  in-egular.  (Yeaton  v.  Fry, 
5  Granch,  335.)  Whether  the  party  will  be  required 
to  name  the  witnesses  to  be  examined  depends  on 
the  discretion  of  the  court.  If  taken  out  to  prove 
pedigree,  their  names  will  not  be  required.  (Parker 
V.  Nixon,  Bald.  291;  Fed.  Gas.  No.  10744.)  Exhibits 
annexed  to  a  deposition  may  be  taken  from  the  file 
and  be  attached  to  the  commission  upon  filmg  copies 
thereof.  (Daly  v.  Maguire,  6  Blatchf.  137;  Fed.  Gas. 
No.  3551.)  The  commission  may  be  issued  to  a 
woman,  although  the  wife  of  the  witness.  (The 
Norway,  2  Ben.  121;  Fed.  Gas.  No.  10358.)  If  a 
Fed.  Proc— 88. 


§  385  EVIDENCE.  1046 

party  fails  to  file  interi-ogatories  the  commission  is 
issued  ex  parte,  and  interrogatories  cannot  tliere- 
after  be  put  to  the  witness  (Fowler  v.  Merrill,  11 
How.  375). 

Proceedings  under  commission. — The  regulation 
of  the  proceedings  under  a  commission  is  a  matter 
in  the  discretion  of  the  court.  (Cunningham  v.  Otis, 
1  Gall.  1G8;  Fed.  Cas.  No.  34S5.)  And  the  law  regu- 
lating the  proceedings  of  the  court  determines  the 
mode  in  which  -the  witness  should  be  sworn  or  quali- 
fied. (.Tones  v.  .Oregon  Cent.  R.  R.  Co.,  3  Sawy.  523; 
Fed.  Cas.  No.  74SG.)  The  mode  of  executing  such 
commission  is  governed  by  this  section,  and  not  by 
State  statutes.  (United  States  v.  Pings.  4  Fed.  Rep. 
714.)  The  commipsiouer  is  an  officer  of  the  court,  with 
I>ower  to  take  the  examination,  and  he  is  to  exercise 
this  power  according  to  the  directions  of  the  commis- 
sion, which  is  his  chart  and  guide.  (Jones  v.  Oregon 
Cent.  R.  R.  Co.,  3  Sawy.  523;  Fed.  Cas.  No.  7486;  Gil- 
pins  V.  Consequa,  3  Wash.  C.  C.  1S4;  Fed.  Cas.  No. 
5452.)  The  deposition  must  be  taken  at  the  time  and 
place  designated  (Boudereau  v.  Montgomery,  4  Wash. 
C.  C.  186;  Fed.  Cas.  No.  ir,94;  Rlioades  v.  Solin,  4 
Wash.  C.  C.  715;  Fed.  Cas.  No.  11740),  and  the  notice 
naming  the  day  must  also  name  the  year  (Knode  v. 
Williamson,  17  Wall.  586);  and  on  an  adjournment 
from  day  to  day  it  cannot  pass  over  an  intermediate 
day.  (Buddicum  v.  Kirk,  3  Cranch,  203.)  The  par- 
ties cannot  appear  before  the  commissioner  either 
In  person  or  by  attorney  (Knode  v.  Williamson,  17 
Wall.  586;  Cunningham  v.  Otis,  1  Gall.  16(5;  Fed. 
Cas.  No.  3485);  nor  can  a  witness  have  a  ft-iend  to 
attend  and  assist  him  before  the  commissioner  (Cun- 
ningham V.  Otis,  1  Gall.  166;  Fed.  Cas.  No.  3485.) 
Witnesses  may  be  examined,  although  not  named  in 
the  commission,  where  their  names  and  testimony 
■were   not  discovered   until   the   commission   was   is- 


1047  EVIDENCE.  §  385 

sued.  (The  Infanta,  Abb.  Adm.  263;  Fed.  Cas.  No. 
7030.)  The  interrogatories  may  be  shown  to  the 
witness  before  he  is  called  upon  to  give  his  testi- 
mony (North  Carolina  R.  U.  Co.  v.  Drew,  3  Woods, 
692;  Fed.  Cas.  No.  17434);  but  no  additional  inter- 
rogatories can  be  filed.  (Cunningham  v.  Otis,  1  Gall. 
166;  Fed.  Cas.  No.  3485.) 

Ezamination  of  witness.— The  witness  should  be 
examined  as  to  each  interrogatory,  and  if  he  omits 
to  answer  any,  the  deposition  is  not  admissible. 
(Nelson  t.  United  States,  Peters,  C  C.  235;  Fed.  Cas. 
No.  10116; -Kentland  v.  Bisset,  1  Wash.  C.  C.  144: 
Fed.  Cas.  No.  7742;  Wenthrop  v.  Union  Ins.  Co.,  2 
Wash.  C.  C.  7;  Fed.  Cas.  No.  17901.)  So  if  no  an- 
swer is  given  to  the  general  interrogatory  (Richard- 
son V.  Golden,  3  Wash.  C.  C.  109;  Fed.  Cas.  No.  11782; 
Dodge  V.  Israel,  4  Wash.  O.  C.  323;  Fed.  Cas.  No. 
3932);  and  it  is  no  ground  of  objection  that  the  mater- 
ial evidence  is  brought  out  under  that  instead  of  un- 
der the  preceding  special  interrogatories.  (Rhoades  v. 
Selin,  4  Wash.  C.  C.  715;  Fed.  Cas.  No.  11740.)  Al- 
though the  answer  to  an  interrogatory  would  not  be 
legal  evidence,  the  deposition  may  be  read  if  the 
interrogatory  was  not  put  to  the  witness.  (Bell  v. 
Davidson,  3  Wash.  C.  C.  328;  Fed.  Cas.  No.  1248.) 
If  the  cross-interrogatories  are  not  put  to  the  wit- 
ness, the  deposition  cannot  be  read  (Gilpins  v.  Con- 
sequa.  Peters  C.  C.  88;  Fed.  Cas.  No.  5452);  but  it  is 
no  objection  that  they  were  not  put  to  each  witness 
till  after  the  direct  interrogatories  were  answered  by 
the  last  witness.  (Gilpins  v.  Consequa,  Peters  C.  G. 
88;  Fed.  Cas.  No.  5452.)  On  a  commission  issued 
ex  parte  the  party  may  put  as  many  or  as  few  inter- 
rogatories as  he  thinlvs  proper,  but  the  last  must  be 
put.     (Fowlei"  v.  Merrill,  11  How.  375.) 


§  385  EVIDENCE.  1048 

To  be  reduced  to  writing.— The  deposition  may  be 
reduced  to  writing  by  the  magistrate  or  by  the  de- 
ponent, in  the  presence  of  the  magistrate  (Stockwell 
V.  United  States,  3  Cliff.  2&4;  Fed.  Cas.  No.  13466); 
it  is  immaterial  in  whose  handwriting  it  is  (Keene  v. 
Meade,  3  Peters,  1);  but  it  will  be  suppressed  if  the 
answers  of  the  witness  are  written  down  by  counsel 
for  the  party  who  procured  the  commission. 
(Uaited  States  t.  Piugs,  4  Fed.  Rep.  714;  but  see 
Nicholls  V.  White,  1  Cranch  C.  C.  58;  Fed.  Cas.  No. 
10235;  Atlvinson  v.  Glenn,  4  Cranch  C.  C  134;  Fed. 
Cas.  No.  610.)  It  is  not  necessary  that  the  deposi- 
tion be  signed  by  the  witness  (Ketland  v.  Bissett,  1 
Wash.  C.  C.  144;  Fed.  Cas.  No.  7742);  and  if  pre- 
pared and  signed  by  the  witness  before  the  oath  is 
administered,  it  is  improper.  (Dodge  v.  Israel,  4 
Wash.  C.  C.  323:  Fed.  Cas.  No.  3952;  N.  C.  Railroad 
Co.  V.  Drew,  3  Woods,  692;  Fed.  Cas.  No.  17434.)  If 
the  commission  is  issued  to  an  alien,  it  may  be  writ- 
ten in  the  English  language,  though  it  does  not  ap- 
pear that  there  was  a  sworn  interpreter.  (Gilpins 
V.  Consequa,  Peters  C.  C.  88;  Fed.  Cas.  No.  5452.) 

Return. — The  return  must  sliow  that  the  commis- 
sioner took  the  oath  annexed  to  the  commission 
(Prevail  r.  Bache,  5  Cranch  C.  C.  463;  Fed.  Cas.  No. 
5113;  but  see  Gilpins  v.  Consequa,  3  Wash.  C.  C. 
184;  Fed.  Cas.  No.  &452);  and  the  return  that  he  took 
the  oath  is  sufficient  evidence  that  it  was  properly 
administered.  (Winter  v.  Simonton,  3  Cranch  C.  C. 
104;  Fed.  Cas.  No.  17894.)  Where  the  deposition 
was  taken  by  a  commissioner  of  the  circuit  court  it 
need  not  appear  that  he  was  sworn.  (Hoyt  v.  Ham- 
mekin,  14  How.  346.)  It  should  appear  by  the  cer- 
tificate or  by  other  evidence  that  the  examination 
was  conducted  at  the  time  and  place  designated 
(Jones  v.  Oregon  Cent.  R.  R.  Co.,  3  Sawy.  523;  Fed. 


1049  EVIDENCE.  §  385 

Oas.  No.  7486;  Ehoades  v.  Selin.  4  Wash.  C.  C.  715; 
Fed.  Cas.  No.  11740);  and  his  certificate  is  prima 
facie  evidence  thereof.  (Boudereau  v.  Montgomery, 
4  Wash.  C.  C.  186;  Fed.  Cas.  No.  1684.)  The  return 
need  not  show  that  the  witness  was  cautioned  be- 
fore being  sworn,  nor  need  it  set  out  the  form  of  the 
oath;  that  he  was  duly  sworn  is  sufficient.  (Keene 
V.  Meade,  3  Peters,  1;  .Jones  v.  Oregon  Cent.  R.  R. 
Co.,  3  Sawy.  523;  Fed.  Cas.  No.  7486.)  The  com- 
missioners need  not  certify  in  whose  handwriting 
the  deposition  was  taken  down.  (Jones  v.  Oregon 
Cent.  R.  R.  Co..  3  Sawy.  523;  Fed.  Cas.  No.  7486.) 
If  exhibits  are  referi-ed  to  by  the  witness,  they 
should  be  annexed  to  the  deposition  with  marlis  or 
references  to  show  that  they  are  the  identical  ones 
referred  to.  (Dodge  v.  Israel,  4  Wash.  C.  C.  323; 
Fed.  Cas.  No.  3952.)  If  the  commissioner  states  in 
the  caption  of  the  deposition  that  it  was  taken  in 
pursuance  of  the  commission,  an  omission  therein  of 
the  names  of  one  of  the  parties  named  in  the  com- 
mission will  not  render  it  inadmissible  (Fowler  v. 
MeiTill,  11  How.  375);  so  that  the  insertion  of  a 
wrong  middle  letter  in  the  name  of  one  of  the  par- 
ties may  be  corrected,  on  motion,  upon  the  return 
of  the  commission.  (Keene  v.  Meade.  3  Peters,  1.) 
The  envelope  may  be  directed  to  the  chief  judge  of 
the  court  (Prevail  v.  Bache,  5  Cranch  C.  C.  463;  Fed. 
Cas.  No.  5113);  and  if  opened  before  it  comes  into 
the  hands  of  the  clerk,  it  may  be  set  aside  and  a 
new  commission  be  issued.  (United  States  v.  Price.  2 
Wash.  C.  C.  356;  Fed.  Cas.  No.  16089.)  Tlie  return 
is  prima  facie  evidence  of  the  facts  stated  therein 
as  to  the  execution  of  the  commission.  (Winter  v. 
Simonton,  3  Cranch  O.  C.  104;  Fed.  Cas.  No'.  17894; 
Boudereau  v.  Montgomery,  4  Wash.  C.  C.  186;  Fed. 
Cas.  No.  1694.) 


§  385  EVIDENCE.  1050 

Objections.— A  party  who  unites  in  issuing  a  com- 
mission cannot  afterward  object  to  it  on  tlie  ground 
that  the  witness  lives  within  the  distance  of  one 
hundred  miles  (Sergeant  v.  Biddle,  4  Wheat.  508; 
Ridgeway  v.  Ghequier,  1  Cranch  C.  C.  4;  Fed.  Gas. 
No.  11813);  but  it  cannot  be  read  in  an  action  at  law 
if  the  witness  at  the  time  of  the  trial,  is  in  the 
place  where  the  court  is  held,  and  is  able  to  attend 
(Weed  V.  Kellogg,  6  McLean,  44;  Fed.  Gas.  17345); 
nor  can  a  party  who  joins  in  a  commission  object 
that  it  was  issued  improperly  or  improvidently  (Ser- 
geant V.  Biddle,  4  Wheat.  508);  so  iiTegularitles  are 
waived  by  appearing  and  cross-questioning  the  wit- 
ness. (Mechanics'  Bank  v.  Seton,  1  Peters,  299.) 
Objection  to  iiTegularities  not  taken  and  noted  when 
the  deposition  is  taken  and  by  motion  to  suppress 
before  the  trial  has  begun,  will  be  deemed  waived 
(Doane  v.  Glenn,  21  Wall.  33;  York  Go.  v.  Gentral 
Railroad,  3  Wall.  107;  Blackburn  v.  Crawford,  3 
Wall.  175);  an  objection  to  the  omission  to  produce  a 
memorandum  referred  to  can  be  taken  only  by  mo- 
tion to  suppress  (Blackburn  v.  Crawford,  3  Wall. 
175);  so  where  the  witness  fails  to  produce  a  copy  of 
a  prior  deposition.  (Winans  v.  N.  Y.  &  Erie  R.  R. 
Co.,  21  How.  88.)  A  waiver  of  notice  of  the  taking 
of  a  deposition  may  be  inferred  from  the  conduct  of 
the  party  or  his  attorney  (Buddicum  v.  Kirt,  3 
Oranch.  293);  but  a  party  may  take  exceptions  to  it 
that  were  not  taken  at  the  time  it  was  returned  and 
opened  (Walker  v.  Parker,  5  Cranch  G.  C.  639;  Fed. 
Gas.  No.  170S2);  so  on  objection  to  the  answer  to  a 
leading  Interrogatory,  the  deposition  will  be  re- 
ferred to  a  master  to  inquire  if  the  interrogatory  Is 
leading.  (Boudereau  v.  Montgomery,  4  Wash.  C.  O. 
186;  Fed.  Gas.  No.  1694.)  The  party  at  whose  in- 
stance a  deposition  was  taken  may  read  the  answer 
to  a  cross-interrogatory,  although  the  answer  to  a  dl- 


1051  EVIDENCE.  §§  386  387 

reet  interrog'atoi'y  was  suppressed.  (Alsop  v.  Com- 
mercial Ins.  Co.,  1  Sum.  451;  Fed.  Cas.  No.  262.) 
The  failure  of  a  party  to  note  objections  to  deposi- 
tions wlaen  taken  or  to  present  them  by  motion  to 
suppress  is  a  waiver  of  the  objections.  (Howard  v. 
Stillwell  etc.  Co.,  139  U.  S.  199.)  Where  questions 
put  to  a  witness  were  unobjectionable,  and  the  an- 
swers were  responsive,  and  not  hearsay,  objections 
taken  are  frivolous.  (Gregory  Consol.  M.  Co.  v. 
Starr,  141  U.  S.  222.) 

§  386.  Depositions  in  perpetuam,  when  admis- 
sible.— Any  court  of  the  United  States  may,  in  its 
discretion,  admit  in  evidence  in  any  cause  before  it, 
any  deposition  taken  in  perpetuam  rei  memoriam, 
which  would  be  so  admissible  in  a  court  of  the 
State  wherein  such  cause  is  pending,  according  to 
the  laws  thereof.     (Eev.  Stats,  sec.  867.) 

Note.— If  the  deposition  in  perpetuam  rei  mem- 
oriam is  not  admissible  in  the  State  court,  it  is  not 
admissible  in  the  Federal  court.  (Gould  v.  Gould, 
3  Story,  516;  Fed.  Cas.  No.  5637;  see  Seeley  v.  Kan- 
sas City  Star  Co.,  71  Fed.  Rep.  554.)  Where  the 
remedy  exists  under  section  866.  an  application 
under  this  section  will  be  denied.  (Richter  v. 
Jerome,  115  TJ.  S.  55.) 

§  387.  Depositions  under  a  dedimus  potesta- 
tem,  how  taken. — When  a  commission  is  issued 
by  any  court  of  the  United  States  for  taking  the 
testimony  of  a  witness  named  therein  at  any  place 
within  any  district  or  Territory,  the  clerk  of  any 
court  of  the  United  States  for  such  district  or  Ter- 
ritory shall,  on  the  application  of  either  party  to 
the  Buit,  or  of  his  agent,  issue  a  subpoena  for  such 


§  388  EVIDENCE.  1052 

witness,  commanding  him  to  appear  and  testify 
before  the  commissioner  named  in  the  commis- 
sion, at  a  time  and  place  stated  in  the  subpoena; 
and  if  any  witness,  after  being  duly  served  with 
such  subpoena,  refuses  or  neglects  to  appear,  or, 
after  appearing,  refuses  to  testify,  not  being  priv- 
ileged from  giving  testimony,  and  such  refusal  or 
neglect  is  proven  to  the  satisfaction  of  any  judge 
of  the  court  whose  clerk  issues  such  subpoena, 
such  judge  may  proceed  to  enforce  obedience  to 
the  process,  or  punish  the  disobedience,  as  any 
court  of  the  United  States  may  proceed  in  case  of 
disobedience  to  process  of  subpoena  to  testify  is- 
sued by  such  court.     (Eev.  Stats,  sec.  868.) 

Note. — This  section  was  intended  to  authorize  the 
procuring  of  means  of  a  commission,  when  neces- 
sary, any  evidence  that  might  be  procured  upon  a 
trial.  (In  re  Shepard,  18  Blatchf.  227;  S.  C,  3  Fed. 
Rep.  12.)  The  commission  must  be  accompanied  by 
written  interrogatories,  and  furnish  information  as 
to  the  inquiry,  or  the  court  cannot  determine  the 
question  as  to  his  refusal  to  answer  a  proper  ques- 
tion. (In  re  Glaser,  2  Banlc.  Reg.  398;  Fed.  Gas.  No. 
5476;  see  Sergeant  v.  Biddle,  4  Wheat.  508;  York 
Co.  V.  Cent.  R.  R.,  3  WaU.  113.) 

§  388.  Subpoena  duces  tecum  under  a  dedimus 
potestatem. — When  either  party  in  such  suit  ap- 
plies to  any  judge  of  a  United  States  court  in  such 
district  or  Territory  for  a  subpoena  commanding 
a  witness,  therein  to  be  named,  to  appear  and  tes- 
tify before  said  commissioner,  at  the  time  and 
place  to  be  stated  in  the  subpoena,  and  to  bring 
with  him  and  produce  to  such  commissioner  any 


1063  EVIDENCE.  §  388 

paper  or  writing  or  writ|;en  instrument  or  book  or 
other  document,  supposed  to  be  in  the  possession 
or  power  of  such  witness,  and  to  be  described  in  the 
subpoena,  such  judge,  on  being  satisfied  by  the 
aflSdavit  of  the  person  applying,  or  otherwise,  that 
there  is  reason  to  believe  that  such  paper,  writing, 
written  instrument,  book,  or  other  document  is  in 
the  possession  or  power  of  the  witness,  and  that 
the  same,  if  produced,  would  be  competent  and 
material  evidence  for  the  party  applying  therefor, 
may  order  the  clerk  of  said  court  to  issue  such 
subpoena  accordingly.  And  if  the  witness,  after 
being  served  with  such  subpoena,  fails  to  produce 
to  the  commissioner,  at  the  time  and  place  stated 
in  the  subpoena,  any  such  paper,  writing,  written 
instrument,  book,  or  other  document,  being  in  his 
possession  or  power,  and  described  in  the  subpoena, 
and  such  failure  is  proved  to  the  satisfaction  of 
said  judge,  he  may  proceed  to  enforce  obedience  to 
said  process  of  subpoena,  or  punish  the  disobedi- 
ence in  like  manner  as  any  court  of  the  United 
States  may  proceed  in  case  of  disobedience  to  like 
process  issued  by  such  court.  When  any  such 
paper,  writing,  written  instrument,  book,  or  other 
document  is  produced  to  such  commissioner,  he 
shall,  at  the  cost  of  the  party  requiring  the  same, 
cause  to  be  made  a  correct  copy  thereof,  or  of  so 
much  thereof  as  shall  be  required  by  either  of  the 
parties.     (Eev.  Stats,  sec.  869.) 

A  subpoena  duces  tecum  may  issue  to  witness  to 
be  examined  on  a  commission.  (In  re  Shepard,  18 
Blatchf.  226;  S.  C,  3  Fed.  Rep.  12.)  The  writ  is  ex- 
pressly confined  to  the  production  of  "any  paper  or 


§  388  EVIDENCE.  1054 

writing  or  written  instrument  or  booli  or  other  docu- 
ment."    (In  re  Sliepaad,  18  Blatclif.  226;  3  Fed.  Rep. 
12.)    The  subpoena    duces  tecum   must    describe  or 
refer  to  the  paper  or  document  which  is  in  the  pos- 
session of  the  witness  and  which  is  required  (Murray 
V.  State  of  Louisiana,  1C3  U.  S.  101.)     It  cannot  issue 
to  a  witness  not  a  party  to  a  suit  to  compel  him  to 
bring  before  the  court  patterns  for  a  stove.     (In  re 
Shepard,  18  Blatchf.  226;  3  Fed.  Rep.  12.)     A  defend- 
ant cannot  be  compelled  to  malie  discoveries  in  an- 
svrer  to  a  bill  which  seelcs  to  enforce  penalties  and 
forfeitures  against  him  by  means  of  such  discoveiies. 
(Atwill    v.    Ferrett,   2    Blatchf.  39;    Fed.    Cas.    No. 
G-10.)      The    defendant    cannot  be  compelled,   under 
a  subpoena  duces  tecum,  to  produce  his  books  and 
papers  and  plates  to  be  used  in  evidence  for  plain- 
tiff.    (Johnson  v.  Donaldson,  18  Blatchf.  287;  S.  C,  3 
Fed.  Rep.  22.)     A  motion  to  compel  such  testimony 
will  not  be  granted  in  aid  of  an  action  for  trespass 
for  the  violation  of  a  copyright.     (Atvvill  v.  Ferrett, 
2  Blatchf.  39;  Fed.  Cas.  No.  040.)     The  relief  will  only 
be  to  the    extent  of    the    part  infringed.     (Story  v. 
Holcombe.  4  McLean.  306:  Fed.  Cas.  No.  13497.)     The 
various  provisions  of  the  law  should  be  liberally  con- 
strued to  give  effect  to  Avhat  may  be  considered  the 
inherent  right  of  the  author  to  his  work  (Myers  v. 
Callahan,  5  Fed.  Rep.  726;  11  Biss.  1.39);  but  equity 
will  not,  at  the  instance  of  the  author,  where  he  has 
made  an   assignment   forever,    rtstrain   the  assignee 
from  selling  after  a  renewal  taken  out  by  the  author. 
(Falgo  V.  Banks.  7  Blatchf.  152;  Fed.  Cas.  No.  10671.) 
The  right  to  a  chart  is  violated  only  when  another 
copies  from  the  chart  of  him  who  has  secured  the 
copyright.     ((Blunt  v.  Patten,  2  Paine,  ,398;  Fed.  Cas. 
No.  1580;  compare  Gray  v.  Russell.  1  Story,  11;  Fed. 
Cas.  No.  ,5728;  Emerson  v.  Da  vies.  3  Story,  7GS;  Fed. 
Cas.  No.  4436.)    The  publication  of  a  map  made  from 


lOaS  EVIDENCE.  §§389  390 

materials  collpcted  while  In  the  service  of  the  gavern- 
niout  as  dranj?htsiiiau  belongs  to  the  government. 
{ConunonwoaUh  v.  Desilvan,  3  Phlla.  31;  see  Heine  v. 
Applclon,  4  Bliitchf.  125:  Fed.  Cas.  No.  G:')24.)  Ck)nipil- 
ing  maps  of  ji  city  of  a  particular  design  from  public 
records  into  an  atlas,  iunl  without  talcing  out  a  copy- 
riglit;  making  several  copies  and  selling  them,  and 
placing  ono  copy  in  the  hands  of  the  city  for  public 
use,  is  a  dedication  to  public  use  (Kees  v.  I'ellzer,  75 
111.  47.^»);  but  depositing  one  chart  in  the  navy  de- 
partment does  not  make  it  public  property.  (Blimt  v. 
Patten,  2  Paine,  397;  Fed.  Cas.  No.  1580.)  A  single 
sheet  containing  diagrams  is  a  subject  of  copyriglit; 
the  form  of  the  publication  is  immaterial  (Drury  v. 
lowing.  1  Bund,  540;  Fed.  Cas.  No.  4005);  but  an  ad- 
vertising card  is  not.  (See  Ehret  v.  IMercc,  10  Fed. 
Hep.  553;  see  United  States  v.  Hall,  44  Fed.  llcp. 
883.) 

§  389.  Witness  under  a  dcdimus  potestatem.— 
No  witness  shall  be  required,  under  the  provisions 
of  cither  of  the  two  precodin<r  sections,  to  attend 
at  any  place  out  of  the  county  wlicre  he  resides, 
nor  more  than  forty  miles  from  the  place  of  his 
residence,  to  give  deposition;  nor  shall  any  witness 
be  deemed  guilty  of  contempt  for  disobeying  any 
subpoena  directed  to  him  by  virtue  of  either  of 
tlie  said  sections,  unless  his  fee  for  going  to,  re- 
turning from,  aiul  one  day's  attendance  at  the 
])lace  of  examination  are  paid  or  tendered  to  him 
at  the  time  of  the  service  of  the  subijoena.  (liev. 
Stats,  sec.  870.) 

^  380.  Depositions  in  District  of  Columbia  in 
suits  pending  elsewhere. — AVhcn  a  commission  to 


§  391  EVIDENCE.  1056 

take  the  testimony  of  any  witness  found  within 
the  District  of  Columbia,  to  be  used  in  a  suit  de- 
pending in  any  State  or  territorial  or  foreign  court, 
is  issued  from  such  court,  or  a  notice  to  the  same 
effect  is  given  according  to  its  rules  of  practice, 
and  such  commission  or  notice  is  produced  to  a 
justice  of  the  supreme  court  of  said  district,  and 
due  proof  is  made  to  him  that  the  testimony  of 
such  witness  is  material  to  the  party  desiring  the 
same,  the  said  justice  shall  issue  a  summons  to  the 
witness,  requiring  him  to  appear  before  the  com- 
missioners named  in  the  commission  or  notice,  to 
testify  in  such  suit,  at  a  time  and  at  a  place  within 
said  district  therein  specified.  (Kev.  Stats,  sec. 
871.) 

§391.     When    no    commission    or    notice. — 

When  it  satisfactorily  appears  by  affidavit  to  any 
justice  of  the  supreme  court  of  the  District  of  Co- 
lumbia, or  to  any  commissioner  for  taking  deposi- 
tions appointed  by  said  court 

First.  That  any  person  within  said  district  is  a 
material  witness  for  either  party  in  a  suit  pend- 
ing in  any  State  or  territorial  or  foreign  court; 

Second.  That  no  commission  nor  notice  to 
take  the  testimony  of  such  witness  has  been  issued 
or  given;  and 

Third.  That,  according  to  the  practice  of  the 
court  in  which  the  suit  is  pending,  the  deposition 
of  a  witness  taken  without  the  presence  and  con- 
sent of  both  parties  will  be  received  on  the  trial 
or  hearing  thereof — such    officer  shall   issue    his 


1057  EVIDENCE.  §§  892-394 

summons,  requiring  the  witness  to  appear  before 
him  at  a  place  within  the  district,  at  some  reason- 
*  able  time,  to  be  stated  therein,  to  testify  in  such 
suit.     (Rev.  Stats,  sec.  872.) 

§  392.  District  of  Columbia — Manner  of  tak- 
ing and  transmitting  the  deposition. — Testimony 
obtained  under  the  two  preceding  sections  shall  be 
taken  down  in  writing  by  the  officer  before  whom 
the  witness  appears,  and  shall  be  certified  and 
transmitted  by  him  to  the  court  in  which  the  suit 
is  pending,  in  such  manner  as  the  practice  of  that 
court  may  require.  If  any  person  refuses  or  ne- 
glects to  appear  at  the  time  and  place  mentioned 
in  the  summons,  or,  on  his  appearance,  refuses  to 
testify,  he  shall  be  liable  to  the  same  penalties  as 
would  be  incurred  for  a  like  offense  on  the  trial 
of  a  suit.     (Eev.  Stats,  sec.  873.) 

§  393.     District  of  Columbia — Witness  fees. — 

Every  witness  appearing  and  testifying  under  the 
said  provision  relating  to  the  District  of  Columbia 
shall  be  entitled  to  receive  for  each  day's  attend- 
ance, from  the  party  at  whose  instance  he  is  sum- 
moned, the  fees  now  provided  by  law  for  each  day 
he  shall  give  attendance.     (Eav.  Stats,  sec.  874.) 

§  394.  Letters  rogatory  from  United  States 
courts. — When  any  commission  or  letter  rogatory, 
issued  to  take  the  testimony  of  any  witness  in  a 
foreign  country,  in  any  suit  in  which  the  United 
States  are  parties  or  have  an  interest,  is  executed 
by  the  court  or  the  commissioner  to  whom  it  is 
Fed.  Proc— 89. 


§  395  EVIDENCE.  1058 

directed,  it  shall  be  returned  by  such  court  or  com- 
missioner to  the  minister  or  consul  of  the  United 
States  nearest  the  place  where  it  is  executed.  Uii 
receiving  the  same, the  said  minister  or  consul  shall 
indorse  thereon  a  certificate,  stating  when  and 
where  the  same  was  received,  and  that  the  said 
deposition  is  in  the  same  condition  as  when  he  re- 
ceived it;  and  he  shall  thereupon  transmit  the  said 
letter  or  commission,  so  executed  and  certified,  by 
mail,  to  the  clerk  of  the  court  from  which  the  same 
issued,  in  the  manner  in  which  his  official  dispatch- 
es are  transmitted  to  the  government.  And  the 
testimony  of  witnesses  so  taken  and  returned  shall 
be  read  as  evidence  on  the  trial  of  the  suit  in  which 
it  was  taken,  without  objection  as  to  the  method  of 
returning  the  same.  [See  sees.  4071,  4074.] 
(Eev.  Stats,  sec.  875.) 

Note.— Depositions  under  the  letters  rogatory  are 
not  subject  to  the  sti'ict  rules  of  taking  depositions. 
(Nelson  v.  United  States,  Pet.  C.  C.  235;  Fed.  Cas.  No. 
10116.) 

§  395.  Letters  rogatory  from  foreign  courts. — 
When  letters  rogatory  are  addressed  from  any 
court  of  a  foreign  country  to  any  circuit  court  of 
the  United  States,  a  commissioner  of  such  circuit 
court  designated  by  such  court  to  make  the  exam- 
ination of  the  witnesses  mentioned  in  said  letters 
shall  have  poM'er  to  compel  the  witness  to  appear 
and  depose  in  the  same  manner  as  witnesses  may 
be  compelled  to  appear  and  testify  in  courts.  (19 
U.  S.  Stats.  241.) 


1059  EVIDENCE.  §  396 

§  396.  Subpoenas  for  witnesses  to  run  into 
another  district. — Subpoenas  for  witnesses  who  are 
required  to  attend  a  court  of  the  United  States, 
in  any  district,  may  run  into  any  other  district; 
provided,  that  in  civil  causes  the  witnesses  living 
out  of  the  district  in  which  the  court  is  held  do  not 
live  at  a  greater  distance  than  one  hundred  miles 
from  the  place  of  holding  the  same.  (Rev.  Stats, 
sec.  87G.) 

Note. — If  a  witness  lives  within  one  hundred  miles 
of  the  place  of  trial,  and  he  fails  to  attend  when 
subpoenaed,  the  court  may  send  an  attachment  to  be 
executed  in  another  district  (United  States  v.  Wil- 
liams. 4  Cranch  C.  C.  372;  Fed.  Cas.  No.  16712);  and 
whether  he  lives  beyond  the  distance  or  not  is  to  be 
determined  by  the  actual  distance  by  iisi:al  routes. 
(Ex  parte  Beebes,  2  Wall.  Jr.  127;  Fed.  Cas.  No.  1220.) 
A  subpoena  cannot  be  issued  for  a  witness  residing 
more  than  one  hundred  miles  from  the  place  of  trial. 
(Henry  v.  Riclietts,  1  Cranch  C.  C.  580;  Fed.  Cas.  No. 
63SG.)  The  privilege  of  a  witness  protects  him  so  as 
to  give  him  a  reasonable  time  after  the  disposition  of 
the  cause  to  go  home.  (Atchison  v.  Morris,  11  Fed. 
Rep.  582;  11  Biss.  191.)  A  party  going  into  another 
State  as  a  witness,  or  as  a  party  under  process  of  a 
court,  is  exempt  from  process  in  such  State  while 
necessarily  attending  there  in  respect  to  such  trial 
(Brooks  V.  Farwell,  4  Fed.  Rep.  167;  2  McCrary,  220 
citing  Parlver  v.  Hotchkiss.  1  Wall.  Jr.  269;  Fed.  Cas 
No.  10739;  The  Juneau  Bank  v.  MeSpedan,  5  Biss.  64 
Fed.  Cas.  No.  7582;  and  see  In  re  Healy,  24  Alb.  L.  J 
529.)  An  attorney  while  attending  to  business  of  his 
clients  in  the  court  of  another  State  is  privileged  from 
service  of  subpoena  (Central  Trust  Co.  v.  Milwaukee 
St.  Ry.  Co.,  74  Fed.  Rep.  442.)     So  a  party,  while  in 


§§  397-398  EVIDENCE.  1060 

another  State  attending  a  regular  examination  of  wit- 
nesses, is  privileged.  (Plimpton  v.  Winslow,  9  Fed. 
Rep.  365;  20  Blatchf.  82.  See,  as  to  privilege  of  wit- 
nesses and  suitors,  Larned  v.  Griffin,  12  Fed.  Rep.  590; 
Atchison  v.  Morris,  11  Fed.  Rep.  582;  11  Biss.  191; 
Matthews  v.  Puffer,  10  Fed.  Rep.  606;  20  Blatchf. 
233.) 

§  397.  Witnesses — Form  of  a  subpoena — ^At- 
tendance.— Witnesses  who  are  required  to  attend 
any  term  of  a  circuit  or  district  court  on  the  part 
of  the  United  States  shall  be  subpoenaed  to  attend 
to  testify  generally  on  their  behalf,  and  not  to  de- 
part the  court  without  leave  thereof  or  of  the  dis- 
trict attorney;  and  under  such  process  they  shall 
appear  before  the  grand  or  petit  jury,  or  both,  as 
they  may  be  required  by  the  court  or  district  at- 
torney.    (Rev.  Stats,  sec.  877.) 

§  398.     Witnesses    for  indigent  defendants. — 

Whenever  any  person  indicted  in  a  court  of  the 
United  States  makes  affidavit,  setting  forth  that 
there  are  witnesses  whose  evidence  is  material  to 
his  defense;  that  he  cannot  safely  go  to  trial  with- 
out them;  what  he  expects  to  prove  by  each  of 
them;  that  they  are  within  the  district  in  which  the 
court  is  held,  or  within  one  hundred  miles  of  the 
place  of  trial;  and  that  he  is  not  possessed  of  suffi- 
cient means,  and  is  actually  unable  to  pay  the  fees 
of  such  witnesses — the  court  in  term,  or  any  Judge 
thereof  in  vacation,  may  order  that  such  witnesses 
be  subpoenaed  if  found  within  the  limits  afore- 
said. In  such  case  the  costs  incurred  by  the  pro- 
cess and  the  fees  of  the  witnesses  shall  be  paid  in 


1061  EVIDENCE,  §§399-401 

the  same  manner  that  similar  costs  and  fees  are 
paid  in  case  of  witnesses  subpoenaed  in  behalf  of 
the  United  States.     (Kev,  Stats,  sec.  878.) 

§  399.  Kecognizance  of  witnesses. — Any  judge 
or  other  officer  who  may  be  authorized  to  arrest 
and  imprison  or  bail  persons  charged  with  any 
crime  or  olfense  against  the  United  States  may,  at 
the  hearing  of  any  such  charge,  require  of  any 
witness  produced  against  the  prisoner,  on  pain 
of  imprisonment,  a  recognizance,  with  or  with- 
out sureties,  in  his  discretion,  for  his  appear- 
ance to  testify  in  the  case.  And  where  the  crime 
or  oft'ense  is  charged  to  have  been  committed  on 
the  high  seas,  or  elsewhere  within  the  admiralty 
and  maritime  jurisdiction  of  the  United  States,  he 
may,  in  his  discretion,  require  a  like  recognizance, 
with  such  sureties  as  he  may  deem  necessary,  of 
any  witness  produced  in  behalf  of  the  accused, 
whose  testimony  in  his  opinion  is  important,  and  is 
in  danger  of  being  otherwise  lost.  (Rev.  Stats, 
sec.  879.) 

§  400.  Vermont — Recognizance  of  witnesses, 
how  taken. — In  the  district  of  Vermont  all  recog- 
nizances of  witness,  taken  by  any  magistrate  in  said 
district,  for  their  appearance  to  testify  in  any  case 
cognizable  either  in  the  district  or  circuit  court 
thereof,  shall  be  to  the  circuit  court  next  there- 
after to  be  held  in  the  said  district.  (Rev.  Stats, 
sec.  880.) 

§  401.  Recognizance  of  witnesses  on  applica- 
tion of    district  attorney. — Any    judge    of    the 


§  402  EVIDENCE.  1062 

United  States,  on  the  application  of  a  district  at- 
torney, and  on  being  satisfied  by  proof  that  the 
testimony  of  any  person  is  competent  and  will  be 
necessary  on  the  trial  of  any  criminal  proceeding 
in  which  the  United  States  are  parties  or  are  in- 
terested, may  compel  such  person  to  give  recog- 
nizance, with  or  without  sureties,  at  his  discretion, 
to  appear  to  testify  therein;  and  for  that  purpose 
may  issue  a  warrant  against  such  person,  under 
his  hand,  with  or  without  seal,  directed  to  the  mar- 
shal or  other  officer  authorized  to  execute  process 
in  behalf  of  the  United  States,  to  arrest  and  bring 
before  him  such  person.  If  the  person  so  arrested 
neglects  or  refuses  to  give  recognizance  in  the 
manner  required,  the  judge  may  issue  a  warrant 
of  commitment  against  him,  and  the  officer  shall 
convey  him  to  the  prison  mentioned  therein.  And 
the  said  person  shall  remain  in  confinement  until 
he  is  removed  to  the  court  for  the  purpose  of  giv- 
ing his  testimony,  or  until  he  gives  the  recog- 
nizance required  by  said  judge.  (Rev.  Stats,  sec. 
881.) 

§  402.  Copies  of  department  records  and  pa- 
pers.— Copies  of  any  books,  records,  papers,  or 
documents  in  any  of  the  executive  departments, 
authenticated  under  the  seals  of  such  departments, 
respectively,  shall  be  admitted  in  evidence  equally 
with  the  originals  thereof.     (Eev.  Stats,  sec.  882.) 

Copies  of  recrds. — Tho  worfls  "papers  or  docu- 
ments" mean  only  suoh  as  are  made  by  an  officer  or 
an  njrent  of  the  government  in  the  discharge  of  his 
official  duty  (Block  v.  United  States,  7  Ct.  of  CI.  406); 


1063  EVIDENCE.  §  402 

and  a  copy  of  such  is  not  competent  evidence  unless 
it  was  the  duty  of  the  officer  to  file  the  original. 
(Block  V.  United  States,  7  Ct.  of  CI.  406.)  In  a  case 
where  the  government  is  the  adverse  party,  certifled 
copies  must  be  procured,  as  a  mere  notice  to  produce 
the  original  is  not  sufficient.  (Barney  v.  Schmeider, 
9  Wall.  248;  Chadwick  v.  United  States,  3  Fed.  Rep. 
750.)  Copies  of  documents  in  the  immediate  custody 
of  the  treasury  department  may  be  authenticated  by 
the  secretary  or  assistant  secretaries,  under  the  seal 
of  the  department.  (Chadwick  v.  United  States,  3 
Fed.  Rep.  753.)  The  mode  of  authentication  pre- 
sci'ibed  by  statute  must  be  strictly  pursued.  (Block 
V.  United  States,  7  Ct.  of  CI.  406.)  If  the  officer  hav- 
ing charge  of  the  paper  certifies  that  it  is  a  true  copy, 
and  the  head  of  the  department  certifies  to  the  official 
character  of  such  officer,  it  is  sufficiently  authenti- 
cated. (Thompson  v.  Smith,  2  Bond,  320;  Fed.  Cas. 
No.  13976.)  A  certificate  by  the  acting  commissioner 
of  Indian  affairs,  whose  official  character  is  certified 
by  the  secretary  of  the  interior,  is  sufficient.  (Ste- 
phens v.  Westwood,  25  Ala.  716.)  A  certificate  of  the 
secretary  of  State,  under  seal  of  the  department  of 
State,  is  evidence  to  prove  the  official  character  of  an 
accredited  minister,  and  the  date  of  his  recognition. 
(United  States  v.  Beuner,  Bald.  234;  Fed.  Cas.  No. 
14568;  United  States  v.  Liddle,  2  Wash.  C.  C.  205; 
Fed.  Cas.  No.  15598.)  If  a  paper  is  signed  by  a  secre- 
tary of  the  treasury,  and  authenticated  by  the  seal 
of  that  department,  it  is  sufficient  (United  States  v. 
Hunt,  13  Fed.  Rep.  240;  White  v.  St.,  Guirons,  Minor, 
331);  so  of  the  copy  of  a  collector's  bond  (Chadwick  v. 
United  States,  3  Fed.  Rep.  750);  so  of  the  copy  of  a 
return  certified  by  the  assistant  secretary  of  the  treas- 
ury, under  seal  of  the  department.  (Chadwick  v. 
United  States,  3  Fed.  Rep.  750.)  A  copy  of  a  vessel's 
register    certified    by    the    registrar,  and    his  official 


§  403  EVIDENCE.  1064 

character  attested  by  the  secretary  of  the  treasury  on 
seal  of  the  department,  is  competent  evidence.  (Car- 
lett  V.  Pac.  Ins.  Ck).,  1  Paine,  594;  Fed.  Cas.  No.  2517; 
Bleecker  t.  Bond,  3  Wash.  C.  C.  529;  Fed.  Cas.  No. 
1534.)  A  certified  copy  of  a  paper  on  file  in  the  office 
of  a  quartermaster-general,  under  seal  of  the  depart- 
ment, is  competent  evidence.  (Thompson  v.  Smith, 
2  Bond.  320;  Fed.  Cas.  No.  13976;  Crowell  v.  Hopkin- 
ton,  45  N.  H.  9;  see  Wetmore  v.  United  States,  10 
Peters,  647.)  A  copy  of  an  adjudication  of  a  claim 
in  the  treasury  department,  certified  by  an  auditor 
alone,  without  the  seal  of  the  department,  is  not  com- 
petent evidence.  (Wickliffe  v.  Hill,  3  Litt.  330.)  A 
duly  certified  transcript  from  the  books  and  proceed- 
ings of  the  treasury  department  is  prima  facie  evi- 
dence of  the  facts  stated  therein.  (United  States  v. 
Eckford,  1  How.  250;  Walton  v.  United  States,  9 
Wheat.  651;  Soule  v.  United  States,  100  U.  S.  8; 
United  States  v.  Eggleston,  4  Sawy.  199;  Fed.  Cas. 
No.  15027.)  A  certificate  of  the  treasury  department, 
declaring  an  account  contained  in  the  treasury  tran- 
script to  be  an  account  between  the  United  States  and 
the  collector  of  internal  revenue,  has  the  legal  effect 
of  making  the  treasury  transcript  prima  facie  evi- 
dence of  the  fact  of  indebtedness  which  it  certifies 
(United  States  v.  Hunt,  13  Fed.  Rep.  240.  note),  unless 
upon  the  face  of  the  account  it  necessarily  appears  to 
be  otherwise.  (United  States  v.  Hunt,  13  Fed.  Kep. 
240,  note.)  Excluding  a  certified  treasury  transcript 
when  offered  in  evidence  is  error.  (United  State.s  v. 
Hunt,  13  Fed.  Rep.  240.)  If  the  execution  of  the  ofli- 
cial  bond  is  denied,  it  cannot  be  proven  by  a  copy 
certified  by  the  secretary  of  the  treasury  under  the 
section.  (United  States  v.  Humason,  8  Fed.  Rep.  71; 
7  Sawy.  252.) 

§  403.     Copies  of  records,  etc.,  in  office  of  solic- 
itor of  the  treasury. — Copies  of  any  documents. 


1065  EVIDENCE.  S§  404  405 

records,  books,  or  papers  in  the  office  of  the  solic- 
itor of  the  treasury,  certified  by  him  under  the 
seal  of  his  office,  or,  when  his  office  is  vacant,  by 
the  ofiicer  acting  as  solicitor  for  the  time,  shall  be 
evidence  equally  with  the  originals.  (Eev.  Stats. 
sec.  883.) 

§  404.  Instruments,  etc.,  of  comptroller  of  the 
currency. — Every  certificate,  assignment,  and  con- 
veyance executed  by  the  comptroller  of  the  cur- 
rency, in  pursuance  of  law,  and  sealed  with  his 
seal  of  office,  shall  be  received  in  evidence  in  all 
places  and  courts;  and  all  copies  of  papers  in  his 
office,  certified  by  him  and  authenticated  by  the 
said  seal,  shall  in  all  cases  be  evidence  equally 
with  the  originals.  An  impression  of  such  seal 
directly  on  the  paper  shall  be  as  valid  as  if  made 
on  wax  or  wafer.     (Rev.  Stats,  sec.  884.) 

§  405.  Organization  certificates  of  national 
banks. — Copies  of  the  organization  certificate  of 
any  national  banking  association,  duly  certified  by 
the  comptroller  of  the  currency,  and  authenticated 
by  his  seal  of  office,  shall  be  evidence  in  all  courts 
and  places  within  the  jurisdiction  of  the  Unit%^d 
States  of  the  existence  of  the  association,  and  of 
every  matter  which  could  be  proved  by  the  produc- 
tion of  the  original  certificate.  (Eev.  Stats,  sec. 
885.) 

Note. — A  copy  certified  and  sealed  by  the  comp- 
troller of  the  currency  is  sufficient.  (First  Nat.  Banlj 
V.  Kidd,  20  Minn.  234.)  A  certificate  is  "sufficient  in 
the  absence  of  any  evidence  that  there  is  any  other 


§  406  EVIDENCE.  lOtiti 

bank  of  the  same  name  at  the  same  place.    (Wash- 
ington Co.  Nat.  Bank  v.  Lee,  112  Mass.  521.) 

§  406.  Transcripts  from  books,  etc.,  of  the 
treasury. — When  suit  is  brought  in  any  case  of  de- 
linquency of  a  revenue  ofiicer,  or  other  person 
accountable  for  public  money,  a  transcript  from 
the  books  and  proceedings  of  the  treasury  depart- 
ment, certified  by  the  register  and  authenticated 
under  the  seal  of  the  department,  or,  when  the 
suit  involves  the  accounts  of  the  war  or  navy  de- 
partments, certified  by  the  auditors  respectively 
charged  with  the  examination  of  those  accounts, 
and  authenticated  under  the  seal  of  the  treasury 
department,  shall  be  admitted  as  evidence,  and  the 
court  trying  the  cause  shall  be  authorized  to  grant 
judgment  and  award  execution  accordingly.  And 
all  copies  of  bonds,  contracts,  or  other  papers  re- 
lating to,  or  connected  with,  the  settlement  of  any 
account  between  the  United  States  and  an  individ- 
ual, when  certified  by  the  register,  or  by  such  au- 
ditor, as  the  case  may  be,  to  be  true  copies  of  the 
originals  on  file,  and  authenticated  under  the  seal 
of  the  department,  may  be  annexed  to  such  tran- 
scripts, and  shall  have  equal  validity,  and  be  enti- 
tled to  the  same  degree  of  credit  which  would  be 
due  to  the  original  papers  if  produced  and  authen- 
ticated in  court;  provided,  that  where  suit  is 
brought  upon  a  bond  or  other  sealed  instrument, 
and  the  defendant  pleads  non  est  factum,  or  makes 
his  motion  to  the  court,  verifying  such  plea  or  mo- 
tion by  his  oath,  the  court  may  take  the  same 
into  consideration,  and,  if  it  appears  to  be  neces- 


1067  EVIDENCE.  §  406 

sary  for  the  attainment  of  justice,  may  require 
the  production  of  the  original  bond,  contract,  or 
other  paper  specified  in  such  affidavit.  (Eev. 
Stats,  sec.  886.) 

Note.— This  section  extends  to  every  delinquency 
(Bechtel  v.  United  States,  101  U.  S.  597),  and  applies 
to  a  surety  as  well  as  the  delinquent  principal. 
(United  States  r.  Gaussen,  19  Wall.  198.) 

Certified  transcript  as  evidence. — Where  copies  are 
made  evidence  by  statute,  the  mode  of  authentication 
must  be  strictly  pursued.  (Smith  v.  United  States,  5 
Pet.  292.)  A  duly  certified  copy  of  a  bond  is  compe- 
tent eviden<}e.  (United  States  v.  Vanzandt,  2  Cranch 
C.  C.  338;  Fed.  Cas.  No.  16611;  United  States  v. 
Griffith,  2  Cranch  C.  C.  3S6;  Fed.  Cas.  No.  152G3; 
United  States  v.  Lent,  1  Paine,  117;  Fed.  Cas.  No. 
15593.)  It  is  the  certificate  of  the  auditor  and  seal  of 
the  department  which  malies  the  transcript  evidence, 
and  neither  must  be  omitted.  (Smith  v.  United 
States,  5  Pet.  292.)  It  is  admissible  although  signed 
by  the  chief  clerk  of  the  treasury.  (Smith  v.  United 
States,  5  Pet.  292.)  It  is  evidence  that  an  officer  re- 
ceived money  charged  against  him  (Bruce  v.  United 
States,  17  How.  437);  it  is  competent  whenever  the 
party  is  charged  with  money  advanced  to  him  by  the 
United  States,  for  which  he  has  to  account  (United 
States  V.  Lee,  2  Cranch  C.C.  462:  Fed.  Cas.  No.  15585); 
but  if  the  rpceipt  is  not  acknowledged  by  him  in  his 
returns,  or  the  money  charged  was  not  regularly  ad- 
vanced, it  is  not  competent  without  other  evidence  of 
the  items.  (United  States  v.  Hilliard,  3  McLean.  324; 
Fed.  Cas.  No.  15368.)  If  all  the  items  on  which  the 
balance  is  struck  are  regularly  entered  and  brought 
forward,  the  statement  is  competent  evidence  (Gra- 
tiat  V.  U.  S.,  15  Pet.  336);  and  it  is  sufficient  if  it  con- 
tains the  accounts,  debts,  and  credits,  as  acted  upon 


§  406  EVIDENCE.  106S 

by  the  accounting  officers.  (Hoyt  v.  U.  S.,  10  How. 
109;  U.  S.  V.  Patterson,  Gilp.  44,  Fed.  Cas.  No.  16008; 
U.  S.  V.  Martin,  2  Paine,  68,  Fed.  Cas.  No.  15732.) 
So  a  transcript  from  the  ledger  is  admissible.  (U. 
S.  V.  Gaussen,  19  Wall.  198.)  The  statement  is  prima 
facie  evidence  only.  (U.  S.  v.  Gaussen,  19  Wall.  198; 
U.  S.  V.  Eckford,  1  How.  250;  U.  S.  v.  Corwin.  1  Bond, 
149,  Fed.  Cas.  No.  14870;  U.  S.  v.  Reymert,  1  Int.  Rev. 
Rec.  63,  Fed.  Cas.  No.  16149.)  It  is  sufficient  evi- 
dence although  the  debtor  did  not  have  notice  of  the 
adjustment  of  his  account.  (Watkins  v.  U.  S..  9 
Wall.  759.)  It  can  only  be  regarded  as  establishing 
items  for  moneys  disbui-sed  through  the  ordinary 
channels  of  the  department  on  whose  books  the  trans- 
actions are  shown  (U.  S.  v.  Buford,  3  Pet.  12;  U. 
S.  v.  Jones,  8  Pet.  375);  but  a  disbursement  made  on 
a  bill  of  exchange  cannot  be  proved  by  the  state- 
ment alone.  (U.  S.  v.  Jones,  8  Pet.  375.)  So  if  an 
account  does  not  arise  in  the  ordinary  mode  of  doing 
business  in  the  department,  its  transcript  is  not  com- 
petent evidence  to  establish  it.  (U.  S.  v.  Buford,  3 
Pet.  12.)  The  transcript  must  be  made  *'from  the 
books,"  and  not  of  the  books  (U.  S.  v.  Gaussen,  19 
Wall.  198);  and  the  act  making  such  transcript  evi- 
dence does  not  mean  a  statement  of  an  account  in 
gross,  but  a  statement  of  the  items  acted  upon  by  the 
accounting  officers.  (U.  S.  v.  Jones,  8  Pet.  375;  U. 
S.  V.  Yanzandt,  2  Cranch  C.  C.  338,  Fed.  Cas.  No. 
16611;  U.  S.  V.  Kuhn,  4  Cranch  C.  C.  401,  Fed.  Cas. 
No.  15545;  U.  S.  v.  Edwards,  1  McLean,  4G7;  Fed. 
Cas.  No.  15026.)  A  certified  copy  of  the  account 
rendered  by  the  principal  is  competent  evidence 
against  the  surety.  (U.  S.  v.  Vanzaudt,  2  Cranch  C. 
C.  8.38,  P^ed.  Cas.  No.  16611;  U.  S.  v.  Gaussen,  19  Wall. 
198.)  If  an  error  is  made  in  favor  of  sureties,  it  may 
be  corrected  and  the  balance  stated  (Soule  v.  U.  S., 
100  U.  S.  8);  but  the  accounting  officers  having  once 


1069  EVIDENCE.  §  407 

stated  an  account,  they  cannot  subsequently  vary  the 
debit  side  to  the  prejudice  of  the  debtor  (U.  S.  v. 
Collier,  3  Blatchf.  325,  Fed.  Cas.  No.  14833;  Ex  parte 
Randolph,  2  Brock.  447,  Fed.  Cas.  No.  11558);  and 
defendant,  by  accepting  the  credits  given  him,  does 
not  ■waive  any  objection  to  items  on  the  debit  side. 
(U.  S.  V.  Jones,  8  Pet.  375.)  The  ofhcers  of  the  treas- 
ury may  certify  facts  within  their  official  knowledge 
(U.  S.  V.  Jones,  8  Pet.  375;  U.  S.  v.  Kuhn,  4  Cranch 
C.  C.  401,  Fed.  Cas.  No.  15545);  and  if  the  tran- 
script shows  the  capacity  in  which  defendant  acted, 
it  is  evidence  of  such  fact.  (Smith  v.  U.  S.,  5  Pet. 
292,)  Wliere  the  government  holds  a  person  respon- 
sible for  the  acts  of  his  agent,  the  agency  must  be 
made  to  appear  by  a  certified  copy  of  the  power. 
(U.  S.  V.  Jones,  8  Pet.  375.)  A  transcript  of  the 
amount  expended  by  the  officers  on  default  of  a  con- 
tractor to  furnish  articles  according  to  contract  is 
competent  evidence.  (U.  S.  v.  Griffith,  2  Cranch  C. 
C.  366,  Fed.  Cas.  No.  15263.)  If  a  bend  is  annexed  to 
the  transcript  it  may  properly  be  certified  as  a  part 
of  it.  (Chadwick  v.  U.  S.,  3  Fed.  Rep.  752.)  A  copy 
of  an  official  bond  certified  by  the  register  of  the 
treasury  under  seal  of  the  department  is  sufficient 
proof  of  its  execution.  (U.  S.  v.  Humason,  8  Fed. 
Rep.  71;  7  Saw.  252.)  In  a  suit  by  the  government 
on  the  bond  of  a  postmaster  to  recover  a  balance  due 
from  him,  a  duly  certified  transcript  of  the  books 
of  the  treasury  department  showing  the  account  be- 
tween such  postmaster  and  the  United  States  is  com- 
petent evidence  and  is  sufficient  to  establish  a  prima 
facie  case,  though  open  to  rebuttal  (United  States  r. 
Carlovitz,  SO  Fed.  Rep.  852). 

§  407. — Transcripts — Books  of  the  treasury. — 

Upon  the  trial  of  any  indictment  against  any  per- 
son ior  embezzling  public  moneys,  it  shall  be  sulfi- 

Fed.  I'roc— 90. 


§§  408-409  EVIDENCE.  1070 

cient  evidence  for  the  purpose  of  showing  a  bal- 
ance against  such  person  to  produce  a  transcript 
from  the  books  and  proceedings  of  the  treasury 
department,  as  provided  by  the  preceding  section. 
(Eev.  Stats,  sec.  887.) 

§  408.  Copies  of  returns  in  returns  office. — A 
copy  of  any  return  of  a  contract  returned  and  filed 
in  the  returns  office  of  the  department  of  the  in- 
terior, as  provided  by  law,  when  certified  by  the 
clerk  of  said  office  to  be  full  and  complete,  and 
when  authenticated  by  the  seal  of  the  department, 
shall  be  evidence  in  any  prosecution  against  any 
officer  for  falsely  and  corruptly  swearing  to  the 
affidavit  required  by  law  to  be  made  by  such  offi- 
cer in  making  his  return  of  any  contract,  as  re- 
quired by  law,  to  said  returns  office.  (Eev.  Stats, 
sec.  888.) 

§  409.  Copies  of  postoffice  records. — Copies  of 
the  quarterly  returns  of  postmasters,  and  of  any 
papers  pertaining  to  the  accounts  in  the  office  of 
the  sixth  auditor,  and  transcripts  from  the  money- 
order  account  books  of  the  postoffice  department, 
when  cei-tified  by  the  sixth  auditor  under  the  seal 
of  his  office,  shall  be  admitted  as  evidence  in  the 
courts  of  the  United  States,  in  civil  suits  and  crim- 
inal prosecutions;  and  in  any  civil  suit,  in  case  of 
delinquency  of  any  postmaster  or  contractor,  a 
statement  of  the  account,  certified  as  aforesaid, 
shall  be  admitted  in  evidence,  and  the  court  shall 
be  authorized  thereupon  to  give  judgment  and 
award  execution,  subject  to  the  provisions  of  law  as 


{ 


1071  EVIDENCE.  §410 

to  proceedings  in  such  civil  suits.     (Eev.  Stats. 
sec.  889.) 

Note.— A  statement  of  account  is  competent  evi- 
dence, although  it  does  not  purport  to  contain  the 
credits  claimed  and  allowed  (U.  S.  v.  Harrill,  1  McAll, 
243,  Fed.  Cas.  No.  15310),  or  the  credits  claimed  and 
disallowed.  (U.  S.  v.  Hodge,  13  How.  478;  see  U.  S. 
V.  Hilliard,  3  McLean,  324,  Fed.  Cas.  No.  15368.)  An 
account  which  gives  the  balances  as  due  on  the 
quarterly  returns  is  sufficient.  (U.  S.  r.  Hodge,  13 
How.  478;  Lawrence  v.  U.  S.,  2  McLean,  581,  Fed. 
Cas.  No.  8145;  U.  S.  v.  Hilliard,  3  McLean,  324,  Fed. 
Cas.  No.  15368;  U.  S.  v.  Harrill,  1  McAll.  243,  Fed. 
Cas.  No.  15310;  Postmaster-General  v.  Rice,  Gilp.  554, 
Fed.  Cas.  No.  11312.)  So  a  certificate  that  a  paper 
is  a  true  and  correct  copy  of  the  account  is  sufficient 
(U.  S.  T.  IlarriU,  1  McAll.  243,  Fed.  Cas.  No.  158a0), 
and  a  copy  of  the  bond  duly  authenticated  is  com- 
petent evidence.     (U.  S.  v.  Wilkinson,  12  How.  246.) 

§410.  Copies  of  statements  of  demands  by 
postoffice  department. — In  all  suits  for  the  recov- 
ery of  balances  due  from  postmasters,  a  copy,  duly 
certified  under  the  seal  of  the  sixth  auditor,  of  the 
statement  of  any  postmaster,  special  agent,  or 
other  person,  employed  by  the  postmaster-general 
or  the  auditor  for  that  purpose,  that  he  has  mailed 
a  letter  to  such  delinquent  postmaster  at  the  post- 
office  where  the  indebtedness  accrued,  or  at  his  last 
usual  place  of  abode;  that  a  sufficient  time  has 
elapsed  for  said  letter  to  have  reached  its  destina- 
tion in  the  ordinary  course  of  the  mail;  and  that 
payment  of  such  balance  has  not  been  received, 
within  the  time  designated  in  his  instructions — 


§411  EVIDENCE.  1072 

shall  be  received  as  sufficient  evidence  in  the  courts 
of  the  United  States,  or  other  courts,  that  a  de- 
mand has  been  made  upon  tne  delinquent  postmas- 
ter; but  when  the  account  of  a  late  postmaster  has 
been  once  adjusted  and  settled,  and  a  demand  has 
been  made  for  the  balance  appearing  to  be  due, 
and  afterward  allowances  are  made  or  credits  en- 
tered, it  shall  not  be  necessary  to  make  a  further 
demand  for  the  new  balance  found  to  be  due. 
(Kev.  Stats,  sec.  890.) 

§  411.  Copies  of  records,  etc.,  of  general  land 
office. — Copies  of  any  records,  books,  or  papers  in 
the  general  landoffice,  authenticated  by  the  seal 
and  certified  by  the  commissioner  thereof,  or,  when 
his  office  is  vacant,  by  the  principal  clerk,  shall  be 
evidence  equally  with  the  originals  thereof.  And 
literal  exemplifications  of  any  such  records  shall 
be  held,  when  so  introduced  in  evidence,  to  be  of 
the  same  validity  as  if  the  names  of  the  officers 
signing  and  countersigning  the  same  had  been 
fully  inserted  in  such  record.  (Eev.  Stats,  sec. 
89L) 

Copies  of  records,  etc.,  in  land-office.— An  exem- 
plification of  any  record  or  paper  of  record  in  tlie 
land-ottice  is  evidence  of  equal  dignity  with  the  orig- 
inal (I^ee  V.  Getty,  26  111.  76;  Davis  v.  Freeland,  32 
Miss.  64.5),  as  of  a  patent  certified  by  the  commis- 
Kioner  of  the  general  land-office  (Hines  v.  Greenlee, 
3  Ala.  73;  Smith  v.  Mosier,  5  Blackf.  51;  Stephenson  v. 
Wait,  8  Blackf.  508;  Lane  v.  Bonmielman,  17  111.  9.3; 
Tvaoey  v.  Davis.  4  Mich.  140;  Barton  v.  Murrain.  27  Mo. 
235;  Avery  v.  Adams,  GO  Mo.  603);  but  this  section  does 


1073  EVIDENCE.  §  412 

not  dispense  with  signing  and  countersigning  the  pat- 
ent (McGarrahan  v.  Mdning  Co.,  96  U.  S.  316);  but  if 
it  is  signed  and  countersigned,  and  verified  by  the  seal 
of  the  general  land-ofhce,   it  is  competent  evidence. 
(Bowser  v.  Warren.  4  Blackf.  522.)     The  form  of  the 
certificate  is  regulated  by  act  of  Congress,  and  is  not 
affected  by  State  laws.     (Gilman  v.  Eiopelle,  18  Mich. 
14.5);  and  a  certificate  by  the  acting  commissioner  un- 
der seal  of  the  general  land-office  is  sufficient.     (Ste- 
phens V.  Westwood,  25  Ala.  716.)    The  seal  and  the 
signature  of  the  commissioner  prima  facie  prove  them- 
selves.    (Harris   v.    Barnett,   4   Blackf.   369;    Bowser 
V.  WaiTen,  4  Blackf.  522.)     A  paper  may  be  admitted 
in  evidence,  although  it  contains  matters  which  the 
certificate  does  not   cover,   if  authenticated    in    due 
form.     (Gilman  v.  Riopelle,  18  Mich.  145.)     So  a  copy 
of  a  plat  and  description  duly  authenticated  is  ad- 
missible in  evidence.     (Harris  v.  Barnett,  4  Blackf. 
369;  see  Godfrey  v.  Beardsley,  2  McLean,  412,  Fed. 
Oas.  No.  5497.)     The  documents  which  make  up  the 
original  title  papers   belong  to  the  public  archives, 
and  a  certified  copy  thereof  is  competent    evidence 
(Hanrick  v.  Barton,  16  Wall.  166);  or  a  certificate  of 
the  receiver  that  a  party  has  made  full  payment  is 
evidence  that  he  has  taken  the  necessary  steps  for 
a  pre-emption  (McDonald  v.  Edmunds,  44  Cal.  328); 
but  a  copy  of  a  final  certificate  and  an  assignment 
thereof  is  not  competent  evidence  to  prove  the  assign- 
ment (Scott  V.  Hancock,  3  Stew.  &  P.  44);  nor  is  a 
letter  of  a  commissioner  to  a  register  and  receiver 
not  duly  aiithenticated  admissible  to  prove  the  facts 
therein     stated.     (Bovee    v.    McLean,   24    Wis.    225.) 
This  section  is  ample  authority  for  the  introduction 
in  e\idence  of  the  transcript  of    the    German    land- 
office.     (Culver  V.  Uthe,  133  U.  S.  655.) 

§  412.    Copies  of  records,  etc.,  of  patent  office. — 
Written  or  printed  copies  of  any  records,  books, 


§  413  EVIDENCE.  1074 

pajjers,  or  drawings  belonging  to  the  patent  of&ce, 
and  of  letters  patent  authenticated  by  the  seal  and 
certified  by  the  commissioner  or  acting  commis- 
sioner thereof,  shall  be  evidence  in  all  cases  where- 
in the  originals  could  be  evidence;  and  any  person 
making  application  therefor,  and  paying  the  fee 
required  by  law,  shall  have  certified  copies  thereof. 
(Eev.  Stats,  sec.  892.) 

Copies  of  record.— A  demand  for  a  copy  of  a  record, 
accompanied  by  rudeness  and  insult,  is  not  a  legal  de- 
mand; nevertheless  a  paiiy  on  a  second  demand  is 
entitled  to  a  copy,  and  it  is  error  to  refuse  to  comply. 
(Boyden  v.  Burke,  14  How.  575.)  An  exemplification 
of  a  patent  and  the  specification  is  admissible  in  evi- 
dence, although  the  drawing  is  not  exemplified  (Peck 
V.  Farrington,  9  Wend.  44);  but  a  copy  of  the  speci- 
fication alone  is  not  competent,  the  proper  evidence 
being  the  patent  itself,  duly  authenticated  by  the 
official  seal  and  certificate  of  the  commissioner. 
(Davis  V.  Gray,  17  Ohio  St.  330.)  A  transcript  of 
certain  documents  on  file  in  the  patent  office  is  com- 
petent, although  not  a  transcript  of  the  whole  proceed- 
ing. (Toohey  v.  Harding,  1  Fed.  Rep.  174;  4  Hughes, 
253.)  A  certified  copy  of  an  assignment  is  prima 
facie  evidence  of  the  genuineness  of  the  ori^nal. 
(Lee  V.  Blandy,  1  Bond,  361,  Fed.  Cas.  No.  8182; 
Brooks  v.  .Tenkins,  3  McLean,  432,  Fed.  Cas.  No.  1953; 
Parker  v.  Haworth,  4  McLean,  370,  Fetl.  Cas.  No. 
10738);  but  a  certified  copy  of  a  transfer  not  required 
by  law  to  be  recorded  is  not  legal  proof  of  the  trans- 
fer. (Sherman  v.  Champlain  Co.,  31  Vt.  162.)  Where 
a  party  desires  to  pi-ove  a  negative,  as  that  therp 
is  no  record,  he  must  do  so  by  the  deposition  of  the 
proper  officer,  and  by  producing  him  in  eourt  to  be 
examined  (Stoner  v.  Ellis,  6  Ind.  152;  Bullock  v. 
Wallingford,  55  N.  H.  619);  and    a    mere    certificate 


1075  EVIDENCE.  §§  413-415 

that  diligent  search  has  been  made  is  not  sufficient. 
(Bullocli  V.  WalUngford,  55  N.  H.  619.)  Certified  cop- 
ies of  patents  are  admissible  in  evidence  in  all  cases 
where  the  originals  would  be  admitted.  (Schoerlien 
V.  The  Swift  etc.  Co.,  7  Fed.  Rep.  469;  19  Blatchf. 
209.) 

§•413.     Copies    of    foreign    letters   patent.— 

Copies  of  the  specifications  and  drawings  of  foreign 
letters  patent,  certified  as  provided  in  tlie  preced- 
ing section,  shall  be  prima  facie  evidence  of  the 
fact  of  the  granting  of  such  letters  patent,  and  of 
the  date  and  contents  thereof.  (Eev.  Stats,  sec. 
893.) 

Note.— Authenticated  copies  of  foreign  patents  are 
prima  facie  evidence  of  the  granting  thereof.  (Schoer- 
ken  V.  The  Swift  etc.  Co.,  7  Fed.  Rep.  470;  19  Blatchf. 
209.) 

§  414.  Printed  copies  of  specifications  and 
drawings  of  patents. — The  printed  copies  of  spec- 
ifications and  drawings  of  patents,  which  the  com- 
missioner of  patents  is  authorized  to  print  for  gra- 
tuitous distribution,  and  to  deposit  in  the  capitols 
of  the  States  and  Territories,  and  in  the  clerks' 
offices  of  the  district  courts,  shall,  when  certified 
by  him  and  authenticated  by  the  seal  of  his  office, 
be  received  in  all  courts  as  evidence  of  all  matters 
therein  contained.     (Eev.  Stats,  sec.  894.) 

§  415.     Extracts  from  the  journals  of  Congress. 

— Extracts  from  the  journals  of  the  senate,  or  of 
the  house  of  representatives,  and  of  the  executive 
journal  of  the  senate  when  the  injunction  of  se- 


§  416  EVIDENCE.  1076 

crecy  is  removed,  certified  by  the  secretary  of  the 
senate  or  by  the  clerl<:  of  the  house  of  represent- 
atives, shall  be  admitted  as  evidence  in  the  courts 
of  the  United  States,  and  shall  have  the  same  force 
and  effect  as  the  originals  would  have  if  produced 
and  authenticated  in  court.    (Kev.  Stats,  sec.  895.) 

§  416.  Copies  of  records,  etc.,  in  offices  of  Uni- 
ted States  consuls,  etc. — Copies  of  all  official  docu- 
ments and  papers  in  the  office  of  any  consul,  vice- 
consul,  or  commercial  agent  of  the  United  States, 
and  of  all  official  entries  in  the  books  or  records 
of  any  such  office,  certified  under  the  hand  and 
seal  of  such  office,  shall  be  admitted  in  evidence 
in  the  courts  of  the  United  States.  [See  see. 
1707.]     (Rev.  Stats,  sec.  896.) 

Consul's  certificate.— The  certificate  of  a  consul  Is 
competent  e-vidence  to  prove  his  official  acts  (The 
Independence,  Crabbe,  54,  Fed.  Cas.  No.  2014);  but 
not  acts  which  are  not  his  official  acts  (The  Inde- 
pendence, Crabbe,  54,  Fed.  Cas.  No.  2014);  as  of  the 
arrival  and  departure  of  a  vessel,  and  of  the  refusal 
of  the  master  to  deposit  the  register  (Levy  v.  Burley, 
2  Sum.  355,  Fed.  Cas.  No.  8300);  nor  is  it  competent 
evidence  to  prove  the  facts  to  justify  the  imprison- 
ment of  a  seaman  by  the  master  in  a  foreign  port, 
(.lohnsonv.  The  Coriolanus,  Crabbe,  2:^9,  Fed.  Cas.  No. 
7380.)  It  is  not  competent  evidence  to  prove  a  foreign 
law.  (Church  v.  Hubbart,  2  Cranch,  187.)  It  is  not  evi- 
dence of  any  fact,  as  between  third  persons,  unless 
expressly  or  impliedly  so  made- by  statute.  (Levy  v. 
Burley,  2  Sum.  355;  Fed.  Cas.  No.  8300;  Church  v. 
Hubbart.  2  Cranch,  187;  U.  S.  v.  Mitchell,  2  Wash. 
C.  C.  478;  Fed.  Cas.  No.  15701;  The  Alice.  12  Fed. 
Rep.  1)23.)     Tlie  certificate  under  seal  of  his  office  is 


1077  EVIDENCE.  §  417 

competent  evidence  to  proA^e  the  fact  that  the  ship's 
papers  were  lodged  with  him  (U.  S.  v.  Mitchell,  2 
Wash.  C.  C.  478;  P'ed.  Cas.  No.  15791);  or  that  a  sea- 
man was  discharged  in  a  foreign  port  with  his  own 
consent.  (Lamb  v.  Briard,  Abb.  Adm.  367;  Fed.  Cas. 
No.  8010.)  It  is  prima  facie  evidence  of  the  violation 
of  law  by  a  master  refusing  to  receive  a  destitute 
seaman  in  a  foreign  port  when  it  sets  out  all  the  facts 
essential.  (Matthews  v.  Offley,  3  Sum.  115;  Fed.  Cas. 
No.  9290.)  Where  the  impression  of  the  seal  on  a 
consular  certificate  is  too  indistinct  to  be  deciphered, 
and  the  signature  vague,  it  is  not  admissible  in  evi- 
dence. (The  Atlantic,  Abb.  Adm.  451;- Fed.  Cas.  No. 
620.) 

§  417.  Books  and  papers  in  offices  of  certain 
districts. — The  transcripts  into  new  books,  made 
by  the  cleiks  of  the  district  courts  in  the  several 
districts  of  Texas,  Florida,  Wisconsin,  Minnesota, 
Iowa  and  Kansas,  in  pursuance  of  the  act  of  June 
twenty-seventh,  eighteen  hundred  and  sixty-four, 
chapter  one  hundred  and  sixty-five,  from  the  rec- 
ords and  journals  transferred  by  them  respectively, 
under  the  said  act,  to  the  clerks  of  the  circuit 
courts  in  said  districts,  when  certified  by  the  clerks 
respectively  making  the  same  to  be  full  and  true 
copies  from  the  original  books,  shall  have  the  same 
force  and  effect  as  records  as  the  originals.  And 
the  certificates  of  the  clerks  of  said  circuit  courts, 
respectively,  of  transcripts  of  any  of  the  books  or 
papers  so  transferred  to  them,  shall  be  received  in 
evidence  with  the  like  effect  as  if  made  by  the 
clerk  of  the  court  in  which  the  proceedings  were 
had.     (Eev.  Stats,  sec.  897.) 


§S  418-419  EVIDENCE.  1078 

§  418.     Transcribed  records — North  Carolina. — 

The  transcripts  into  new  books  made  by  the  clerks 
of  the  circuit  and  district  courts  for  the  western 
district  of  North  Carolina,  in  pursuance  of  the  act 
of  June  four,  eighteen  hundred  and  seventy-two, 
chapter  two  hundred  and  eighty-two,  when  certi- 
fied by  the  clerks  respectively  making  the  same  to 
be  full  and  true  copies  from  the  original  books, 
shall  have  the  same  force  and  effect  as  records  as 
the  originals.  And  the  certificates  of  the  clerks 
of  said  circuit  and  district  courts,  respectively,  of 
transcripts  of  any  of  the  said  transcribed  records, 
shall  also  be  received  in  evidence  with  the  like  ef- 
fect as  if  made  by  the  proper  clerk  from  the  orig- 
inals from  which  such  records  were  transcribed. 
(Kev.  Stats,  sec.  898.) 

§  419.  When  original  records  are  lost  or  de- 
stroyed.— When  the  record  of  any  judgment,  de- 
cree, or  other  proceeding  of  any  court  of  the  Uni- 
ted States  is  lost  or  destroyed,  any  party  or  per- 
son interested  therein  may,  on  application  to  such 
court,  and  on  showing  to  its  satisfaction  that  the 
same  was  lost  or  destroyed  without  his  fault,  ob- 
tain from  it  an  order  authorizing  such  defect  to  be 
supplied  by  a  duly  certified  copy  of  the  original 
record,  where  the  same  can  be  obtained;  and  such 
certified  copy  shall  thereafter  have,  in  all  respects, 
the  same  effect  as  the  original  record  would  have 
had.    (Eev.  Stats,  sec.  899.) 

Note. — Sooondary  evidence  of  a  .indcrmont  if?  admis- 
Bible  where  the  record  is  destroyed.  (Comett  v.  Wil- 
liams, 20  Wall.  226.) 


J 


1079  EVIDENCE.  jis  420-421 

§  420.  Lost  records. — When  any  such  record  is 
lost  or  destroyed,  and  the  defect  cannot  be  sup- 
plied as  provided  in  the  preceding  section,  any 
party  or  person  interested  therein  may  make  a 
written  application  to  the  court  to  which  the  rec- 
ord belonged,  verified  ])v  nffidavit.  showing  such 
loss  or  destruction;  that  the  same  occurred  with- 
out his  fault  or  neglect;  ihai  certified  copies  of 
such  record  cannot  be  obtained  by  him;  and  show- 
ing also  the  substance  of  the  record  so  lost  or 
destroyed,  and  that  the  loss  or  destruction  thereof, 
unless  supplied,  will  or  may  result  in  damage  to 
him.  The  court  shall  cause  said  application  to 
be  entered  of  record,  and  a  copy  of  it  shall  be 
served  personally  upon  every  person  interested 
therein,  together  with  written  notice  that  on  a 
day  therein  stated,  which  shall  not  be  less  than 
sixty  days  after  such  service,  said  application 
will  be  heard;  and  if,  upon  such  hearing,  the 
court  is  satisfied  that  the  statements  contained 
in  the  application  are  true,  it  shall  make  and 
cause  to  be  entered  of  record  an  order  reciting 
the  substance  and  effect  of  said  lost  or  destroyed 
record.  Said  order  shall  have  the  same  effect,  so 
far  as  concerns  the  party  or  person  making  such 
application  and  the  persons  served  as  above  pro- 
vided, but  subject  to  intervening  rights,  which 
the  original  record  would  have  had  if  the  same  had 
not  been  lost  or  destroyed.    (Kev.  Stats,  sec.  900.) 

§  421.  Lost  records  of  cause. — When  any  cause 
has  been  removed  to  the  supreme  court,  and  the 
original  record  thereof  is  afterward  lost,  a  duly 


SS  422-423  EVIDENCE.  1080 

certified  copy  of  the  record  remaining  in  said  court 
may  be  filed  in  the  court  from  which  the  cause 
was  removed,  on  motion  of  any  party  -.or  person 
claiming  to  be  interested  therein;  and  the  copy  so 
filed  shall  have  the  same  effect  as  the  original  rec- 
ord would  have  had  if  the  same  had  not  been 
lost  or  destroyed.    (Kev.  Stats,  sec.  901.) 

§422.  Proceeding  to  restore  lost  or  destroyed 
records — Notice. — In  any  proceedings  in  conform- 
ity with  law  to  restore  the  records  of  any  court  of 
the  United  States  which  have  been  or  may  be 
hereafter  lost  or  destroyed,  the  notice  required 
may  be  served  on  any  nonresident  of  the  district 
in  which  such  court  is  held  anywhere  within  the 
jurisdiction  of  the  Ignited  States,  or  in  any  for- 
eign country;  the  proof  of  service  of  such  notice, 
if  made  in  a  foreign  country,  to  be  certified  by  a 
minister  or  consul  of  the  United  States  in  such 
countrv,  under  his  official  seal.  (Eev.  Stats,  sec. 
902;  20  U.  S.  Stats.  277.) 

§  423.  Force  and  effect  of  papers  restored  or 
supplied. — A  certified  copy  of  the  official  return, 
or  any  other  official  paper  of  the  United  States 
attorney,  marshal,  or  clerk,  or  other  certifying  or 
recording  officer  of  any  court  of  the  United  States, 
made  in  pursuance  of  law,  and  on  file  in  any  de- 
partment of  the  government,  relating  to  any  cause 
or  matter  to  whicli  the  United  States  Avas  a  party 
in  any  such  court,  the  record  of  wliich  has  been 
or  may  be  lost  or  destroyed,  may  be  filed  in  the 
court  to  which  it  appertains,  and  shall  have  the 


1081  EVIDENCE.  §  424 

same  force  and  effect  as  if  it  were  an  original  re- 
port, return,  paper,  or  other  document  made  to 
or  filed  in  such  court;  and  in  any  case  in  which 
the  names  of  the  parties  and  the  date  and 
amount  of  judgment  or  decree  shall  appear  from 
such  return,  paper,  or  document,  it  shall  be  lawful 
for  the  court  in  which  they  are  filed  to  issue  the 
proper  process  to  enforce  such  decree  or  judgment, 
in  the  same  manner  as  if  the  original  record  re- 
inained  in  said  court.  And  in  all  cases  where  any 
of  the  files,  papers,  or  records  of  any  court  of  the 
United  States  have  been  or  shall  be  lost  or  de- 
stroyed, the  files,  records,  and  papers  which,  pur- 
suant to  law,  may  have  been  or  may  be  restored 
or  supplied  in  place  of  such  records,  files,  and 
papers,  shall  have  the  same  force  and  effect,  to  all 
intents  and  purposes,  as  the  originals  thereof 
would  have  been  entitled  to.  (Eev.  Stats,  sec.  903; 
20  U.  S.  Stats.  277.) 

§  424.  Restoration  of  records — Compensation, 
etc. — That  whenever  any  of  the  records  or  files 
in  which  the  United  States  are  interested  of  any 
court  of  the  United  States  have  been  or  may  be 
lost  or  destroyed,  it  shall  be  the  duty  of  the  at- 
torney of  the  United  States  for  the  district  or 
court  to  which  such  files  and  records  belong,  so 
far  as  the  judges  of  such  courts  respectively  shall 
deem  it  essential  to  the  interests  of  the  United 
States  that  such  records  and  files  be  restored  or 
supplied,  to  take  such  steps,  under  the  direction 
of  said  judges,  as  may  be  necessarv  to  efppct  such 
restoration  or  substitution,  including  such  dock- 

Fed.  Proc— 91. 


S  425  EVIDENCE.      .  1082 

ets,  indices,  and  other  books  and  papers  as  said 
judges  shall  think  proper.  Said  judges  may  di- 
rect the  performance,  by  the  clerks  of  said  courts, 
respectively,  and  by  the  United  States  attorneys, 
of  any  duties  incident  thereto;  and  said  clerks  and 
attorneys  shall  be  allowed  such  compensation  for 
services  in  the  matter  and  for  lawful  disburse- 
ments as  may  be  approved  by  the  attorney-general 
of  the  United  States,  upon  a  certificate  by  the 
judges  of  said  courts  stating  that  such  claim  for 
services  and  disbursements  is  just  and  reasonable; 
and  the  sum  so  allowed  shall  be  paid  out  of  the 
judiciary  fund.  (Eev.  Stat.  sec.  904;  20  U.  S. 
Stats.  277.) 

§  425.  Authentication  of  legislative  acts  and 
proof  of  judicial  proceedings  of  States,  etc. — The 
acts  of  the  legislature  of  any  State  or  Territory, 
or  of  any  country  subject  to  the  jurisdiction  of 
the  United  States,  shall  be  authenticated  by  hav- 
ing the  seals  of  such  State,  Territory,  or  country 
afBxed  thereto.  The  records  and  judicial  proceed- 
ings of  the  courts  of  any  State  or  Territory, 
or  of  any  such  country,  shall  be  proved  or  admit- 
ted in  any  other  court  within  the  United  States, 
by  the  attestation  of  the  clerk,  and  the  seal  of  the 
court  annexed,  if  there  be  a  seal,  together  with 
a  certificate  of  the  judge,  chief  justice,  or  presid- 
ing magistrate,  that  the  said  attestation  is  in  due 
form.  And  the  said  records  and  judicial  proceed- 
ings so  authenticated  shall  have  such  faith  and 
credit  given  to  them  in  every  court  within  the 
United  States  as  they  have  by  law  or  usage  in  the 


1083  EVIDENCE.  §  425 

courts  of  the  State  from  which  they  are  taken. 
(Kev.  Stats,  sec.  905.) 

Statutes.— An  exemplification  of  a  statute  under  the 
great  seal  of  State  may  be  given  in  evidence  without 
further  attestation,  and  the  presumption  is,  that  the 
officer  who  used  the  great  seal  is  the  person  to  whom 
it  is  confided.  (U.  S.  v.  Johns,  4  Dall.  415;  S.  C.  1 
Wash.  C.  C.  363;  Fed.  Cas.  No.  15481;  U.  S.  v.  Amedy, 
11  Wheat.  392.)  The  statute  book  of  a  State,  pui-poit- 
ing  to  be  published  by  authority  of  its  legislature, 
and  deposited  in  the  department  of  State,  is  evidence. 
(Com.  &  F.  Bank  v.  Patterson,  2  Cranch  O.  C.  346; 
Fed.  Cas.  No.  3056.)  So  are  the  pamphlet  laws  of  a 
State  published  by  authority  and  proved  to  be  admis- 
sible as  evidence  in  the  State.  (Rockville  &  W.  T. 
Co.  V.  Andrews,  2  Cranch  C.  O.  451;  Fed.  Cas.  No. 
11984;  Thompson  v.  Musser,  1  Dall.  458.)  But  a 
printed  pamphlet  which  has  no  seal  affixed,  contain- 
ing the  law  of  another  State,  is  not  admissible.  (Craig 
V.  Brown,  Peters  C.  C.  354;  Fed.  Cas.  No.  3328.)  The 
Courts  of  the  United  States  take  judicial  notice  of  the 
public  statutesof  the  several  States  (Merchant's  Bxch. 
Bank  v.  McGraw,  15  U.  S.  App.  332;  59  Fed.  Rep.  972 
Noonan  v.  Delaware  L.  &  W.  R.  Co.,  68  Fed.  Rep.  1 
Davidow  v.  Pennsylvania  R.  Co.,  85  Fed.  Rep.  943 
L'Engle  v.  Gates,  74  Fed.  Rep.  513),  and  may  take  no- 
tice of  the  various  statutes  which  were  iu  force  prior 
to  the  adoption  of  the  constitution  of  the  United 
States.  (Loree  v.  Abner,  6  U.  S.  App.  649;  57  Fed. 
Rep.  159.) 

Authentication  of  records. — A  record  must  be  au- 
thenticated according  to  the  form  used  in  the  State 
whence  it  comes;  and  the  only  evidence  of  this  fact 
is  the  certificate  of  the  presiding  judge  (Craig  v. 
Brown,  Peters  C.  C.  354;  Fed.  Cas.  No.  3328),  whose 
official    character    should    appear    in  the    certificate 


§  425  XYIDENCE.  1081 

(Pratt  V.  King,  1  Or.  49;,  stating  that  the  attestation 
Is  in  due  form  of  law.  (Trigg  v.  Conway,  Hemp.  538; 
Fed.  Cas.  No.  14172.)  A  eertflcate  by  one  styling  him- 
self "one  of  the  judges"  of  a  court  is  not  sufficient. 
(Stewart  v.  Gray,  Hemp.  94;  Fed.  Cas.  No.  13428  a; 
Gardner  v.  Lindo,  1  Cranch  C.  C.  78;  Fed.  Cas.  No. 
5231.)  The  seal  of  the  court  must  be  annexed  to  the 
record  itself;  it  is  not  enough  that  it  is  annexed  to  the 
judge's  certilicate.  (Turner  v.  Waddington,  3  Wash. 
C.  C.  126;  Fed.  Cas.  No.  14263.)  But  the  record  of  a 
court  which  has  no  seal  may  be  admitted  on  such 
statement  in  the  judge's  certilicate.  (Morgan  v.  Cur- 
teuius,  4  McLean,  366;  Fed.  Cas.  No.  9799.)  If  the 
record  be  duly  certified  under  the  act  of  1790,  no  evi- 
dence is  admissible  that  the  attestation  is  not  in  due 
form.  (Ferguson  v.  Harwood,  7  Cranch,  408.)  If  the 
record  is  properly  proved,  such  proof  is  of  the  same 
nature  as  an  inspection  by  the  court  of  its  own  record, 
and  shall  have  such  faith  and  credit  as  it  has  in  the 
State  court  from  whence  it  was  taken  (Mills  v.  Dur- 
yee.  7  Cranch,  481;  Green  v.  Sarmiento,  1  Peters  C.  C. 
74;  Fed.  Cas.  No.  5760;  3  Wash.  C.  C.  17;  McElmoyle 
V.  Cohen,  13  Peters,  312;  Whitaker  v.  Branison,  2 
Paine,  209;  Fed.  Cas.  No.  17526);  and  no  greater.  (Pub- 
lic Works  V.  Columbia  College,  17  Wall.  521.)  It  is  the 
uniform  practice  to  follow  the  requirements  of  this 
section  as  to  the  certificate  of  the  clerk  and  judge  in 
authenticating  the  records  and  judicial  proceedings  in 
the  U.  S.  courts.  (O'Hai-a  v.  Mobile  &  O.  Ry.  Co.,  40 
U.  S.  App.  471;  76  Fed.  Rep.  719.)  The  authenticated 
opinion  of  the  supreme  court  will  not  control  the 
official  report  as  published  as  to  differences.  (Game- 
well  Fire  Alarm  Tel.  Co.  v.  Municipal  Signal  Co.,  77 
Fed.  Rep.  490;  33  U.  S.  App.  714.) 

Exemplified  judgments.— -The  Federal  courts  are 
bound  to  give  to  a  judgment  of  a  State  court  the  same 
faith  and  credit  to  which  it  is  entitled  in  the  State 


1085  EVIDENCE.  §  425 

courts  (Chicago  etc.  R.  R.  Oo.  v.  Wiggins'  Ferry  Co., 
108  U.  S.  18;  Chase  v.  Curtis,  113  U.  S.  452),  and  the 
judgments  of  the  courts  of  the  Indian  nations  in  the 
Indian  Territory  stand  upon  the  same  footing.  (Stand- 
ley  V.  Roberts,  19  U.  S.  App.  407;  59  Fed.  Rep.  836.) 
The  act  of  May  26,  1790  (1  Stat.  122),  now  embodied 
in  section  905  of  the  Revised  Statutes,  does  not  pre- 
vent an  inquiry  into  the  jurisdiction  of  the  court,  in 
which  a  judgment  is  rendered,  to  pronounce  the  judg- 
ment, nor  into  the  right  of  the  State  to  exercise  au- 
thority over  the  parties  or  the  subject-matter,  nor 
whether  the  judgment  is  founded  in  and  impeachable 
for  a  manifest  fraud.  (Cole  v.  Cunningham,  133  U.  S. 
107.)  It  did  not  make  the  judgments  of  the  States 
domestic  judgments  to  all  intents  and  purposes  but 
only  gave  a  general  validity,  faith,  and  credit  to  them 
as  evidence.  They  enjoy  only  the  right  of  priority, 
or  privilege,  or  lien,  wliich  the  lex  fori  gives  to  them 
by  its  own  laws,  in  their  chai'acter  of  foreign  judg- 
ments. (McElmoyle  v.  Cohen,  13  Pet.  312,  328,  329; 
D'Arcy  v.  Ketchum,  11  How.  165;  Thompson  v.  Whit- 
man, 18  Wall.  457;  Pennoyer  v.  Neff,  95  U.  S.  714; 
Wisconsin  r.  Pelican  Ins.  Co.,  127  U.  S.  265,  292; 
Christmas  v.  Russell,  5  Wall.  290;  Story  on  Constitu- 
tion, sees.  1303  et  seq.,  and  Story  on  Conflict  of  Laws, 
sec.  609:  Cole  v.  Cumiingham,  133  U.  S.  107.)  A  per- 
sonal judgment  is  without  validity  if  rendered  by  a 
State  court  in  an  action  upon  a  money  demand 
against  a  nonresident  of  the  State.  (D'Arcy  v.  Ketch- 
um, 11  How.  165;  Thompson  v.  Whitman,  18  Wall. 
457;  Hall  v.  Jyanning,  91  U.  S.  160;  Pennoyer  v.  Neff, 
95  U.  S.  714;  Guthrie  v.  Lowry,  84  Pa.  St.  533;  Scott 
V.  Noble,  72  Pa.  St.  115;  Noble  v.  Thompson  Oil  Co., 
79  Pa.  St.  354;  Steel  v.  Smith.  7  Watts  &  S.  447;  Bank 
of  U.  S.  V.  Merchants'  Bank,  7  Gill,  415;  Clark  v. 
Bryan,  16  Md.  171;  Weaver  v.  Boggs,  38  Md.  255.) 
The  circuit  court  of  appeals  may  determine  whether 


§  425  EVIDENCE.  1086 

due  force  and  effect  has  been  given  to  a  judgment 
or  decree  of  another  State.  (Merritt  v.  American 
Steel  Barge  Go.,  40  U.  S.  App.  127:  75  Fed.  Rep.  813.) 

Federal  courts. — The  words  of  the  statute  "in  any 
other  court  within  the  United  States"  make  its  pro- 
visions applicable  to  the  Federal  courts  as  well  as  to 
courts  of  other  States  (Mills  v.  Duryee,  7  Cranch,  481; 
Galpin  v.  Page,  3  Sawy.  93;  Fed.  Gas.  No.  5206),  and  to 
the  District  of  Golumbia.  (Mills  v.  Duryee,  7  Granch, 
481.)  The  transcript  of  a  judgment  of  a  State  cer- 
tified by  the  clerk  is  admissible  in  a  Federal  court 
in  the  same  State  without  any  certificate  from  the 
judge  (Mewster  v.  Spaulding,  6  McLean,  24;  Fed.  Gas. 
No.  9513);  but  it  must  be  authenticated  in  accordance 
with  this  section  to  be  used  in  a  Federal  court  sitting 
in  another  State  (U.  S.  v.  Biebuseh,  1  Fed.  Rep.  213; 
1  MeCrary,  42);  and  the  Federal  courts  will  give  to 
the  judgments  of  the  State  courts  only  the  same  faith 
and  credit  which  the  courts  of  other  States  are  bound 
to  give  them.     (Pennoyer  v.  Neff,  95  U.  S.  714.) 

Extraterritorial  effect.— The  act  makes  a  judgment 
or  decree  evidence  of  the  right  established  thereby, 
but  gives  it  no  extratenitorial  effect.  It  is  not  a  lien 
on  lands  in  another  State  (Green  v.  Sarmiento,  1 
Peters  G.  C.  74;  Fed.  Gas.  No.  5760;  S.  G.  3  Wash.  O. 
C.  17);  does  not  operate  as  a  conveyance  of  real  estate, 
in  another  State  (Watts  v.  Waddle.  6  Peters,  389;  S.  G. 
1  McLean,  200;  Fed.  Gas.  No.  17295;  Tardy  v.  Morgan, 
3  McLean,  358;  Fed.  Gas.  No.  13752),  and  cannot  be 
enforced  by  execution  in  another  State.  (McElmoyle 
V.  Cohen,  13  Peters,  312.)  All  courts  of  justice  are 
bound  to  talce  judicial  notice  of  the  territorial  extent 
of  the  governmental  jurisdiction  as  appearing  from 
public  legislative  acts.  (Jones  v.  United  States,  137 
U.  S.  202.)  The  provisions  of  the  constitution  (art.  4, 
Bee.  1;  Act  of    May  26,  1790,  chap.  11;    1  Stats,  at 


1087  EVIDENCE.  §  425 

Large,  122;  Rev.  Stats.,  sec.  905)  establish  a  rule  of 
evidence,  rather  than  of  jurisdiction.  Judgments  re- 
covered in  one  State  of  the  Union,  when  proved  in  the 
courts  of  another  government,  whether  State  or 
national,  differe  from  judgments  recovered  in  a  for- 
eign country  in  no  other  respect  than  in  not  being 
re-examinable  on  their  merits,  nor  irhpeachable  for 
fraud.  (Hanley  v.  Donoghue,  116  U.  S.  1;  Wisconsin 
V.  Pelican  Ins.  Co.  of  New  Orleans,  127  U.  S.  265.) 

Impeachment.— As  to  the  impeachment  in  one  State 
of  a  judgment  rendered  in  another,  see,  on  ground  of 
negligence  of  attorney,  Amory  v.  Amory,  3  Biss.  266; 
Fed.  Oas.  No.  334;  counterclaim,  BaiTas  v.  Bidwell,  3 
Woods,  5;  Fed.  Cas.  No.  10:39;  limitations,  Christmas 
V.  Russell,  5  Wall.  290;  Bank  r.  Dalton,  9  How.  522; 
Bacon  v.  Howard,  20  How.  22;  jurisdiction,  Christ- 
mas V.  Russell,  5  Wall.  290;  Knowles  v.  Gaslight  «& 
C.  Co.,  19  Wall.  58;  S.  C.  2  DiU.  421;  Fed.  Cas.  No. 
8467;  Cheever  v.  Wilson,  9  Wall.  108;  non.residenee, 
Kuhn  V.  McMillan,  3  Dill.  372;  Fed.  Oas.  No.  7945; 
plea  of  nul  tiel.  Hill  v.  Mendenhall,  21  Wall.  453;  ser- 
vice by  publication,  Galpin  v.  Page,  18  Wall.  350;  S. 
O.  3  Sawy.  93;  Fed.  Cas.  No.  5206;  Public  Works  v. 
Columbia  College,  17  Wall.  521;  Nations  v.  Johnson, 
24  How.  195;  Phelps  v.  Holker,  1  Dall.  261;  service  on 
agent,  Warren  Manf.  Co.  v.  Etna  Ins.  Co.,  2  Paine, 
501;  Fed.  Oas.  No.  17206;  Lafayette  Ins.  Co.  v.  French, 
18  How.  404;  S.  0.  5  McLean,  461;  Fed.  Cas.  No.  5102; 
service  on  one  of  several  partnera.  Hall  v.  Lanning,  91 
TJ.  S.  160;  Burt  v.  Delano,  4  Cliff.  611;  Fed.  Cas.  No. 
2211;  fraud.  Maxwell  v.  Stewart,  22  Wall.  77;  Ran- 
dolph V.  King,  2  Bond,  104;  Fed.  Cas.  No.  11560;  at- 
tachment.  Maxwell  v.  Stewart,  22  Wall.  77;  Green  v. 
Van  Buskirk,  7  Wall.  139;  S.  0.  2  Keyes,  119;  34  Barb. 
457;  Warburton  v.  Aken,  1  McLean,  460;  Fed.  Cas. 
No.  17143. 


§  428  EVIDExNCE.  10S8 

§  426.  Proofs  of  records,  etc.,  kept  in  offices 
not  pertaining  to  courts. — All  records  and  exem- 
plifications of  books,  which  may  be  kept  in  any- 
public  office  of  any  State  or  Territory,  or  of  any 
country  subject  to  the  jurisdiction  of  the  United 
States,  not  appertaining  to  a  court,  shall  be 
proved  or  admitted  in  any  court  or  office  in  any 
other  State  or  Territory,  or  in  any  such  country, 
by  the  attestation  of  the  keeper  of  the  said  rec- 
ords or  books,  and  the  seal  of  his  office  annexed, 
if  there  be  a  seal,  together  with  a  certificate  of  the 
presiding  justice  of  the  court  of  the  county,  par- 
ish, or  district  in  which  such  office  may  be  kept, 
or  of  the  governor,  or  secretary  of  state,  the 
chancellor  or  keeper  of  the  great  seal  of  the  State 
or  Territory  or  country,  that  the  said  attestation 
is  in  due  form,  and  by  the  proper  officers.  If  the 
said  certificate  is  given  by  the  presiding  justice 
of  a  court,  it  shall  be  further  authenticated  by 
the  clerk  or  prothonotary  of  the  said  court,  who 
shall  certify,  under  his  hand  and  the  seal  of  his 
office,  that  the  said  presiding  justice  is  duly  com- 
missioned and  qualified;  or,  if  given  by  such 
governor,  secretary,  chancellor,  or  keeper  of  the 
great  seal,  it  shall  be  under  the  great  seal  of  the 
State,  Territory,  or  country  aforesaid  in  which  it 
is  made.  And  the  said  records  and  exemplifica- 
tions, so  authenticated,  shall  have  such  faith  and 
credit  given  to  them  in  every  court  and  office 
within  the  United  States  as  they  have  by  law  or 
usage  in  the  courts  or  offices  of  the  State,  Terri- 
tory, or  country,  as  aforesaid,  from  which  they  are 
taken.    (Eev.  Stats,  sec.  906.) 


1089  EVIDENCE.  §  426 

Proofs  of  records.— A  copy  of  the  record  of  proceea- 
ings  of  a  court  is  not  within  this  section  (larlton  v. 
Briscoe,  1  A.  K,  Marsh,  67j;  as  a  copy  of  a  judgment 
of  a  justice  of  the  peace.  (Lawrence  v.  Gaultney, 
Oheves,  7;  Snyder  v.  Wise,  10  Pa.  157.)  A  copy  of 
a  deed  recorded  in  one  State  is  not  admissible  in  a 
court  of  another  State  without  proof  that  the  laws  of 
the  other  State  authorize  the  record  of  the  instru- 
ment (Powell  V.  Knox,  16  Ala.  364.)  So  if  certified 
by  the  clerk  of  the  court  where  recorded  with  the 
certificate  of  the  governor,  it  is  not  admissible. 
(Leggoo  V.  Canal  Co.,  3  La.  Ann.  138;  Dickson  v.  Gris- 
som,  4  La.  Ann.  538;  Condit  v.  Blackwell,  19  N.  J.  Eq. 
193;  Quay  v.  Eagle  F.  Ins.  Co.,  Anth.  173,  237*.)  The 
statute  does  not  extend  to  the  exemplification  of  the 
record  of  a  deed  or  other  private  writing  returned  to 
the  owner  after  record.  (Russell  v.  Kearney,  27  Ga. 
96.)  So  a  copy  of  a  power  of  attorney  recorded  in  one 
State  is  not  evidence  to  affect  land  situated  in  another 
State.  (State  v.  Engle,  21  N.  J.  L.  347.)  So  a  copy  of 
a  will  proved  and  recorded  in  one  State  is  not  compe- 
tent evidence  in  another  State.  (Hylton  v.  Brown,  1 
Wash.  C.  C.  298;  Fed.  Cas.  No.  6981;  Kelly  v.  Ross, 
Busb.  277.)  When  the  record  of  a  will  does  not  ap- 
pertain to  a  court,  it  should  be  authenticated  in  con- 
formity with  this  section.  (Ewing  v.  Savary,  4  Bibb, 
424.)  So  the  record  of  a  patent  for  an  office  when  it 
does  not  appertain  to  a  court  should  be  authenticated 
(Henthorn  v.  Shepherd,  1  Blackf.  157);  but  an  exem- 
plified copy  of  a  marriage  license  and  certificate  duly 
authenticated  is  competent  evidence.  (King  v.  Dale, 
2  111.  513.)  Unless  a  guardian's  bond  is  a  matter  of 
record  it  should  be  certified  under  this  section.  (Car- 
lisle T.  Tuttle,  30  Ala.  613.)  A  record  may  be  proved 
by  a  sworn  copy.     (Karr  v.  Jackson,  28  Mo.  316.) 

Certificate.— Tbe  mode  prescribed  in  this  section  ig 
the  only  mode  of  authentication,  as  of  a  deed  (Pen- 


§  437  BVIDENCB.  109O 

nel  V.  Weyant,  2  Har.  (Del.)  oOlj ;  and  the  copy  thereof 
is  not  admissible  in  another  State  unless  the  attesta- 
tion is  in  due  form.  (Drummond  v.  Magruder,  9 
Cranch,  122;  Key  v.  Vaughn,  15  Ala,  497;  Johnson  v. 
Fowler,  4  Bibb,  521;  Fennel  r.  Weyant,  2  Har.  (Del.) 
501;  Wan-en  v.  Wade,  7  Jones  (N.  C.)  494;  Petermans- 
V.  Laws,  6  Leigh,  523;  Kidd  v.  Manley,  28  Miss.  156^ 
Brown  v.  Edson,  23  Vt.  435.)  If  a  cea-tilicate  of  incor- 
poration  is  filed  in  the  ottice  of  the  secretary  of  State, 
he  need  not  ceilify  that  the  attestation  is  in  due  form. 
(Grant  v.  H.  C.  Coal  Co.,  80  Pa.  St.  208.)  A  pardon 
certified  under  the  great  seal  of  the  State  is  compe- 
tent evidence.  (U.  S.  v.  Wilson,  Bald.  78;  Fed.  Cas. 
No.  16730.)  So  a  copy  of  a  survey  certified  by  the 
register  and  by  the  judge  and  by  the  secretary  of 
State  under  the  great  seal  is  sufficient  (Smith  v.  Red- 
den, 5  Har.  (Del.)  321);  but  a  copy  of  a  will  and  pro- 
bate attested  by  the  register  with  the  seal  of  his  office 
is  not  sufficient.  (Ewing  v.  Savary,  4  Bibb,  424; 
Smith  V.  Redden,  5  Har.  (Del.)  321.)  The  clerk's  cer- 
tificate should  show  that  the  judge  is  presiding  judge, 
or  that  he  is  presiding  judge  for  the  district.  (Paca 
V.  Dutton,  4  Mo.  371.) 

§  427.  Copies  of  foreign  records,  etc.  — Land 
titles. — It  shall  be  lawful  for  any  keeper  or  per- 
son having  the  custody  of  laws,  judgments,  or- 
ders, decrees,  journals,  correspondence,  or  other 
public  documents  of  any  foreign  government  or 
its  agents,  relating  to  the  title  to  lands  claimed  by 
or  under  the  United  States,  on  the  application  of 
the  head  of  one  of  the  departments,  the  solicitor 
of  the  treasury,  or  the  commissioner  of  the  gen- 
eral landofEice  to  authenticate  copies  thereof  un- 
der his  hand  and  seal,  and  to  certify  them  to  be 
correct  and  true  copies  of  such  laws,  judgments^ 


i091  EVIDENCE.  §§  438-429 

orders,  decrees,  journals,  correspondence,  or  other 
public  documenis,  respectively;  and  wnen  such 
copies  are  certilied  by  an  American  minister  or 
consul,  under  his  hand  and  seal  of  office,  to  be 
true  copies  of  the  originals,  they  shall  be  sealed 
up  by  him  and  returned  to  the  solicitor  of  the 
treasury,  who  shall  file  them  in  his  office,  and 
cause  them  to  be  recorded  in  a  book  to  be  kept  for 
ihat  purpose.  A  copy  of  any  such  law,  judgment, 
order,  decree,  journal,  correspondence,  or  other 
public  document,  so  filed,  or  of  the  same  so  re- 
corded in  said  book,  may  be  read  in  evidence  in 
any  court,  where  the  title  to  land  claimed  by  or 
under  the  United  States  may  come  into  question, 
equally  with  the  originals.    (Rev.  Stats,  sec.  907.) 

§  428.     Evidence  of  United  States  statutes. — 

The  edition  of  the  laws  and  treaties  of  the  United 
States,  published  by  Little  &  Brown,  shall  be 
competent  evidence  of  the  several  public  and  pri- 
vate acts  of  Congress,  and  of  the  several  treaties 
therein  contained,  in  all  the  courts  of  law  and 
equity  and  of  maritime  jurisdiction,  and  in  all  the 
tribunals  and  public  offices  of  the  United  States, 
and  of  the  several  States,  without  any  further 
proof  or  authentication  thereof.  (Rev.  Stats,  sec. 
908.) 

§  429.  Printed  copies  of  statutes  to  be  evi- 
dence.— That  the  said  printed  copies  of  the  said 
acts  of  each  session  and  of  the  said  bound  copies 
of  the  acts  of  each  Congress  shall  be  legal  evi- 
dence of  the  laws  and  treaties  therein  contained, 


§§  429a-431  evidence.  1092 

in  all  the  courts  of  the  United  States  and  of  the 
several  States  therein.  (18  U.  S.  Stats.  114;  28 
U.  S.  Stats.  601.) 

§■429  a.  Supplement  of  Revised  Statute*  as 
evidence. — The  publication  of  the  supplement  of 
Eevised  Statutes,  to  include  the  general  laws  of 
the  forty-seventh,  forty-eighth,  forty-ninth,  fif- 
tieth, and  fifty-first  Congresses,  and  their  print- 
ing and  distribution  herein  authorized,  shall  be 
taken  to  be  prima  facie  evidence  of  the  laws  there- 
in contained,  but  shall  not  change  nor  alter  any 
existing  law,  nor  preclude  reference  to  nor  control 
in  case  of  any  discrepancy,  the  effect  of  an  original 
act  passed  by  Congress.    (26  U.  S.  Stats.  50.) 

§  430.  Revised  statutes  of  United  States.— 
The  publication  herein  authorized  shall  be  taken 
to  be  prima  facie  evidence  of  the  laws  therein 
contained  in  all  the  courts  of  the  United  States, 
and  of  the  several  States  and  Territories  therein; 
but  shall  not  preclude  reference  to,  nor  control, 
in  case  of  any  discrepancy,  the  effect  of  any 
original  act  as  passed  by  Congress;  provided,  that 
Dothing  herein  contained  shall  be  construed  to 
change  or  alter  any  existing  law.  (21  U.  S.  Stats, 
sec.  380.) 

§  431.  Burden  of  proof  when  it  lies  on  claim- 
ant in  seizure  cases. — In  suits  or  informations 
brought,  where  any  seizure  is  made  pursuant  to 
any  act  providing  for  or  regulating  the  collection 
of  duties  on  imports  or  tonnage,  if  the  property 


1093  EVIDENCE.  §  433 

is  claimed  by  any  person,  the  burden  of  proof  shall 
lie  upon  such  claimant;  provided,  that  probable 
cause  is  shown  for  such  prosecution,  to  be  judged 
by  the  court.    (Eev.  Stats,  sec.  909.) 

Note.— See  United  States  v.  740  Tins  of  Opium  (D. 
C.  D.  Wash.),  44  Fed.  Rep.  998;  United  States  v.  1060 
Tins  of  Opium  (D.  C.  D.  Wash.),  44  Fed.  Rep.  799. 

"Probable  cause"  does  not  mean  prima  facie  evi- 
dence, but  less  than  evidence  which  would  justify 
condemnation.  (Loclier  v.  U.  S.,  7  Cranch,  339;  The 
Luminary,  8  Wheat.  407;  Woods  v.  U.  S.,  16  Peters, 
342;  The  John  Griffin,  15  Wall.  29.)  Whether  prob- 
able cause  has  been  shown  is  a  question  of  law.  (Tay- 
lor V.  U.  S.,  3  How.  197;  Buckley  v.  U.  S.,  4  How. 
251;  Clifton  v.  U.  S.,  4  How.  242.)  If  defendant  with- 
holds evidence  in  his  possession,  it  may  be  presumed 
that  such  evidence  is  unfavorable  to  him.  (Clifton 
V.  U.  S.,  4  How.  242.)  This  section  applies  to  seizures 
under  laws  enacted  since  its  adoption.  (Cliquot's 
Champagne,  3  Wall.  114.) 

§  432.  Possessory  actions  for  recovery  of  min- 
ing titles. — No  possessory  action  between  persons, 
in  any  court  of  the  United  States,  for  the  recov- 
ery of  any  mining  title,  or  for  damages  to  any 
such  title,  shall  be  alfected  by  the  fact  that  the 
paramount  title  to  the  land  in  which  such  mines 
lie  is  in  the  United  States;  but  each  case  shall  be 
adjudged  by  the  law  of  possession.  (Rev.  Stats. 
sec.  910.) 

Fed.  Pboc— 92. 


PBOCEDUBE.  1094 


CHAPTER  XX. 

PKOCEDUKE. 

§  433.    Sealing  and  testing  of  writs. 

§  434.    Teste  of  process,  day  of. 

§  435.  Process  and  proceedings  in  equity  and  ad- 
miralty. 

§  436.  Practice  of  Federal  courts  to  conform  to  tlaat 
of  State  courts. 

§  436  a.  Procedure  in  partition  suits  where  United 
States  is  party. 

§  437.     Attachments. 

§  438.    Executions  in  common-law  causes. 

§  438  a.  Procedure  on  award  in  controversies  between 
carriers  and  their  employees. 

§  439.  Supreme  court  to  regulate  the  practice  of  cir- 
cuit and  district  courts. 

§  440.  Practice  in  the  several  courts  to  be  regulated 
by  their  own  rules. 

§  441.  Suits  for  duties,  imposts,  taxes,  penalties,  or 
forfeitures. 

§  442.     Consolidation  of  revenue  seizures. 

§  443.  Orders  to  save  costs,  and  consolidation  of 
causes  of  a  like  nature. 

§  444.  When  the  marshal  or  his  deputy  is  a  party  in 
a  cause. 

§  445.     Seizures  for  forfeitures,  in  certa  in  cases. 

§  445  a.  I'roceedings  to  restrain  combinations  in  vio- 
lation of  import  trade. 

§  446.     Attachments  in  postal  suits. 

§  447.  Application  for  warrant— By  whom  and  how 
made. 

§  448.     Issuing  warrant,  duty  of  clerk  and  marshal. 


1095  PROCEDURE. 

§  449.  Ownership  of  attached  property— Trial— Other 
remedies. 

§  450.     Proceeds  of  attached  property  to  be  invested. 

§  451.     Publication  of  attachment. 

§  452.  Persons  having  property  of  defendants  to  ac- 
count for  it— Sales  void— Personal  notice. 

§  453.    Discharge  of  attachment  bond. 

§  454.    Accrued  rights  not  to  be  abridged. 

§  455.  Attachments  dissolved  in  conformity  vrith 
State  laws. 

§  456.  Property  talien  under  revenue  laws  irreplevi- 
able. 

§  457.  Garnishees  in  suits  by  the  United  States  on 
notes,  etc. 

§  458.  Issue  tendered  when  garnishee  denies  indebt- 
edness. 

§  459.     Garnishee  failing  to  appear. 

§  460.    Bailing  of  property  seized  under  custom  laws. 

§  461.     Sale  after  condemnation. 

§  462.  In  cases  of  seizure,  bailing  of  property  in  va- 
cation. 

§  463.    Delivery  bond  in  admiralty  proceedings. 

§  464.  Special  bail  required  in  suit  for  duties  and 
penalties. 

§  465.  When  defendant  giving  bail  in  one  district  is 
committed  in  another. 

§  466.     Allowing  prisoners  to  escape. 

§  467.    Application  of  preceding  section. 

§  468.  Defendant  held  until  judgment  in  the  first 
suit. 

§  469.  Bail  and  affidavits  may  be  talien  by  commis- 
sioners. 

§  470.     Calling  of  bail  in  Kentucky. 

§  471.    When  clerks  may  take  bail  de  bene  esse. 

§  472.     Amendment  of  process. 

§  473.     Priority  of  cases  in  which  a  State  is  a  party. 

§  474.    Notice  of  case  for  trial. 


FBOCEDUBE.  1096 

§  475.  Suits  of  United  States  against  Individuals, 
wliat  credits  allowed. 

§  476.  In  suits  under  postal  laws,  what  credits  al- 
lowed. 

§  477.     Bill  of  exceptions. 

§  478.     Defects  of  form— Amendments. 

§  479.     Deatli  of  parties. 

§  480.     Revivor  on  deatti  of  party. 

§  481.  When  one  of  several  plaintiffs  or  defendants 
dies. 

§  482.  Delinquents  for  public  money— Judgment  at 
return  term,  unless,  etc. 

§  483.  Suits  under  postal  laws— Judgment  at  return 
term,  unless,  etc. 

§  484.  Suits  on  debentures— Judgment  at  return 
term,  unless,  etc. 

§  485.  Suits  on  bonds  for  recovery  of  duties— Judg- 
ment at  return  term,  unless,  etc. 

§  486.  Judgment  for  sum  due  in  equity  on  bonds, 
etc. 

§  487.  Judgment  for  duties,  etc.,  to  state  that  it  is 
to  be  collected  in  coin. 

§  488.     Interest  on  bonds,  for  duties. 

§  489.  Interest  on  balances  due  post-office  depart- 
ment. 

§  490.     Interest  on  debentures. 

§  491.     Interest  on  judgments. 

§  492.    Judgments— Lien  and  record  of. 

§  493.     Kecord  in  Louisiana. 

§  494.     Effect  of  judgments  in  California. 

§  495.  When  judgments  of  United  States  courts 
cease  to  be  liens. 

§  496.    When  plaintiff  or  petitioner  not  allowed  costs. 

§  497.     Cases  under  revenue  laws,  collectors. 

§  498.     Compromises  in  revenue  cases. 

§  499.     Kemission  of  lines. 

§  500.     Discoutinuauces. 


1097  PBOCEDURE. 

§  501.     Continuances. 

§  502.  Costs  in  internal  revenue  suits  upon  informa- 
tion. 

§  503.  Claimant  not  entitled  to  costs  when  reason- 
able cavise  of  seizure. 

§  504.  Double  costs  when  plaintiff  is  nonsuited  in 
action  against  officer  mailing  seizure,  etc. 

§  505.     Copyright  suits,  full  costs  allowed. 

§  506.  Costs  not  recoverable  in  certain  suits  for  in- 
fringement of  patent. 

§  507.  When  costs  of  prosecution  to  be  paid  by  de- 
fendant. 

§  508.  When  costs  are  recovered  by  defendant  in  a 
prosecution. 

§  509.  Fees  of  clerk,  marshal,  etc.,  when  payable  by 
informer,  when  by  United  States. 

§  510.  Costs  when  several  actions  are  brought 
against  parties  who  might  be  joined  in  one. 

§  511.  Allowance  of  costs  in  libels  against  vessels 
and  cargo. 

§  512.  Claimant's  costs  to  be  paid  before  possession, 
when,  etc. 

§  513.  When  district  attorney  is  entitled  to  but  one 
bill  of  costs  for  several  prosecutions. 

§  514.  Taxation  of  fees  of  witness  before  a  commis- 
sioner. 

§  515.  Attorney  liable  for  costs  vexatiously  in- 
creased by  him. 

§  516.     Bill  of  costs,  how  taxed. 

§  517.  Bill  of  costs  to  be  sworn  to  before  tax'ed  or 
allowed. 

§  518.  Executions  to  run  in  all  the  districts  of  a 
State. 

§  519.  Executions  in  favor  of  United  States  to  run  in 
every  State  and  Territory. 

§  520.     Executions  stayed  on  conditions. 

§  521.  When  judgment  debtor  entitled  to  a  continu- 
ance of  one  term. 


§  433  PEOCEDTJBE.  1098 

§  522.  Execution,  when  not  to  issue  against  oflBcers 
of  revenue. 

§  523.    Imprisonment  for  debt. 

§  524.  Discharge  from  arrest  or  imprisonment  on 
mesne  or  final  process. 

§  525.     Privileges  of  jail-limits. 

§  526.     Goods  taken  on  a  fieri  facias,  how  appraised. 

§  526  a.  Property,  how  sold  under  order  of  court. 

§  527.     Death  of  marshal  after  levy  or  after  sale. 

§  528.  Moneys  paid  into  court,  where  and  how  de- 
posited. 

§  529.     How  moneys  deposited  to  be  withdrawn. 

§  433.  Sealing  and  testing  of  writs. — All  writs 
and  processes  issuing  from  the  courts  of  the 
United  States  shall  be  under  the  seal  of  the  court 
from  which  they  issue,  and  shall  be  signed  by 
the  clerk  thereof.  Those  issuing  from  the  su- 
preme court  or  a  circuit  court  shall  bear  teste  of 
the  chief  justice  of  the  United  States,  or,  when 
that  office  is  vacant,  of  the  associate  justice  next 
in  precedence,  and  those  issuing  from  a  district 
court  shall  bear  teste  of  the  judge,  or,  when  that 
office  is  yacant,  of  the  clerk  thereof.  The  seals 
of  the  said  courts  shall  be  provided  at  the  expense 
of  the  United  States.    (Rev.  Stats,  sec.  911.) 

Note.— The  provisions  of  this  section  are  not  abro- 
gated by  section  nine  hundred  and  fourteen.  fDwight 
V.  Merritt,  18  Blatchf.  305;  4  Fed.  Rep.  614;  see  Wha- 
len  V.  Sheridan.  18  Blatchf.  324;  10  Fed.  Rep.  661.) 
A  writ  of  error  bearing  the  teste  of  the  clerk,  and  not 
of  the  chief  justice  of  the  supreme  court,  Is  void. 
(Wells  V.  McGregor,  13  Wall.  188.)  A  summons  or 
notice  must  be  under  the  seal  of  the  court,  and  signed 
by  the  clerk.  (D-wight  r.  Merritt,  18  Blatchf.  305;  4 
Fed.  Rep.  614;  Peaslee  v.  Haberstro,  15  Blatchf.  472; 


10'.)9  PEOCEDTJRE.  §§  434-435 

Fed.  Cas.  No.  10884.)  A  warrant  in  admiralty  not 
under  seal  nor  signed  by  the  clerk  is  not  sufficient, 
although  signed  by  the  judge.  (Bowler  v.  Eldridge, 
18  Conn.  1.)  And  if  void  on  its  face,  it  is  no  protec- 
tion to  the  marshal.  (Bowler  v.  Eldridge,  18  Conn. 
1.)  If  a  writ  of  venditioni  exponas  is  regular  in  all 
respects,  except  that  it  is  signed  by  a  deputy  clerk  in 
his  own  name,  it  is  an  irregularity  that  can  be  taken 
advantage  of  only  in  a  direct  proceeding.  (Griswoid 
V.  Connolly,  1  Woods,  193;  Fed.  Cas.  No.  5833;  Bragg 
V.  Lorio,  1  Woods,  209;  Fed.  Cas.  No.  1800.)  The  pro- 
visions of  this  section  are  held  obligatory  on  parties 
and  courts  (Thompson  v.  Railroad  Companies,  6  Wall. 
134),  but  they  do  not  apply  to  the  territories.  (Horn- 
buckle  V.  Toombs,  18  Wall.  648.)  A  garnishee  sum- 
mons is  process  within  this  section,  and  must  be  is- 
sued by  the  clerk.  (Middletooi  Paper  Co.  v.  Rock  Riv. 
P.  Co.,  19  Fed.  Rep.  252.)  A  paper  purporting  to  be 
a  venire  facias  tested  in  the  name  of  the  deputy  clerk 
is  void.    (United  States  v.  Antz,  16  Fefl.  Rep.  119.) 

§  434.  Teste  of  process,  day  of. — All  process 
issued  from  the  courts  of  the  United  States  shall 
bear  teste  from  the  day  of  such  issue.  (Eev.  Stats, 
sec.  912;  17  U.  S.  Stats.  197.) 

Note.— A  writ  of  error  is  within  this  rule.  (Ather- 
ton  V.  Fowler,  91  U.  S.  143. 

§  435.  Process  and  proceedings  in  equity  and 
admiralty. — The  forms  of  mesne  process  and  the 
forms  and  modes  of  proceeding  in  suits  of  equity 
and  of  admiralty  and  maritime  jurisdiction  in  the 
circuit  and  district  courts  shall  be  according  to 
the  principles,  rules,  and  usages  which  belong  to 
courts  of  equity  and  of  admiralty,  respectively, 
except  when  it  is  otherwise  provided  by  statute 


§  435  PROCEDURE.  1100 

or  by  rules  of  court  made  in  pursuance  thereof; 
but  the  same  shall  be  subject  to  alteration  and  ad- 
dition by  the  said  courts,  respectively,  and  to  regu- 
lation by  the  supreme  court,  by  rules  prescribed, 
from  tiuie  to  time,  to  any  circuit  or  district  court, 
not  inconsistent  with  the  laws  of  the  United 
States.    (Rev.  Stats,  sec.  913.) 

Practice  in  equity.— The  forms  and  modes  of  pro- 
cedure in  equity  are  according  to  tlie  principles,  rules, 
and  usages  of  the  court  of  chancery  in  England.  (Vat- 
tier  V.  Hinde,  7  Pet.  253;  Livingston  v.  Story.  9  Pet. 
632;  Van  Hook  v.  Pendleton,  2  Blatchf.  85;  Fed.  Cas. 
No.  16852;  Hubbard  v.  Turner,  2  McLean.  519;  Fed. 
Cas.  No.  6819;  Goodyear  v.  P.  R.  Co.,  2  Cliff.  351;  Fed. 
C«s.  No.  5583;  Mbtte  v.  Bennett,  2  Fish.  Pat.  Oas. 
642;  Fed.  Cas.  No.  9884.)  The  remedies  at  common 
law  and  equity  are  distinguished,  and  jurisdiction  in 
equity  is  to  be  uniform  throughout  the  United  States, 
without  modification  from  state  legislation  or  prac- 
tice. (United  States  v.  Howland,  4  Wheat.  108;  Liv- 
ingston V.  Story,  9  Pet.  632;  Green  v.  Creighton,  23 
How.  90;  Pomeroy  v.  Manin,  2  Paine,  476;  Fed.  Caa. 
No.  11260;  Farmers'  L.  &  T.  Co.  v.  Central  R.  R.  Co., 
2  Fed.  Rep.  656;  Schoolfield  v.  Rhodes.  82  Fed.  Rep. 
153.)  So  State  laws  affecting  remedies  have  no  effect 
upon  the  jurisdiction.  (Mayer  v.  Foulkrod,  4  Wash. 
C.  C.  349;  Fed.  Cas.  No.  9341.)  So  as  to  the  effect  of 
granting  an  injunction  (Boyle  v.  Zacharie,  6  Pet.  648); 
and  if  a  bond  with  sureties  be  required  on  granting 
an  injunction,  the  court  cannot  give  judgment  against 
the  obligors  on  dissolution  of  the  injunction,  although 
it  is  the  practice  in  the  state  court.  (Bein  v.  Heath, 
12  How.  168;  Deakin  v.  Stanton,  3  Fed.  Rep.  435.) 
State  laws  providing  against  foreclosing  a  mortgage 
where  judgment  has  been  obtained  on  the  debt  do  not 
apply  (Dow  v.  Chamberlain,  5  Mclvean,  281;  Fed.  Cas. 


1101  PKOCEDUBE.  §435 

No.  4037);  nor  can  the  circuit  court  enter  a  decree 
for  tlie  balance,  after  exhausting  the  proceeds  of  the 
mortgaged  estate.  (Noonan  v.  Lee,  2  Blacls,  500.)  In 
&.  bill  to  quiet  title  defendant  cannot  set  up  a  claim 
for  the  propei-ty  and  rents.  (Hurt  v.  Hollingsworth, 
100  U.  S.  100.)  If  an  undertaking  is  filed  to  release 
property  from  a  lien,  a  decree  cannot  be  made  at 
once  against  the  undertakers  on  a  decree  entered 
against  the  principal  without  an  express  stipulation 
(Phillips  V.  Gilbert,  101  U.  S.  721);  and  parties  may 
recede  from  a  stipulation  waiving  a  separate  trial  of 
legal  and  equitable  rights.  (Hurt  v.  Hollingsworth, 
100  U.  S.  100.)  Although  imder  the  state  law  inter- 
rogatories may  be  propounded  by  defendant,  yet  the 
practice  does  not  prevail  in  the  Federal  Courts.  (Mc- 
Donald V.  Smalley,  1  Pet.  620.)  So  the  granting  of 
a  new  trial  instead  of  a  rehearing  is  erroneous.  (U.  S. 
V.  Curry,  6  How.  lOG.)  The  practice  of  the  court  of 
chancery  in  England,  and  not  that  of  the  court  of  ex- 
chequer, furnishes  the  basis  of  equity  practice  in 
United  States  courts.  (Smith  v.  Burnham,  2  Sum. 
612;  Fed.  Cas.  No.  13018.)  So  circuit  courts  have  power 
to  appoint  masters  in  chancery  (Van  Hook  v.  PendU- 
ton,  2  Blatchf.  85;  Fed.  Cas.  No.  16852);  or  examiners 
in  chancery  (Van  Hook  v.  Pendleton,  2  Blatchf.  85; 
Fed.  Cas.  No.  16852);  or  commissioners  to  take  testi- 
mony. (Vau  Hook  V.  Peddleton,  2  Blatchf.  85;  Fed. 
Cas.  No.  16852.)  The  facts  stated  as  affording 
grounds  for  relief  must  be  stated  according  to  their 
legal  effect.  (John  Hancock  Mut.  L.  Ins.  Co.  v.  Man- 
ning, 7  Fed.  Rep.  299;  Johnston  v.  Roe,  1  Fed.  Rep. 
695.)  Equity  practice  in  the  courts  of  the  United 
States  is  regulated  by  the  laws  of  Congress,  and  the 
rules  of  the  United  States  Supreme  Court  made  under 
the  authority  of  an  act  of  Congress.  (Gaines  v.  New 
Orleans,  27  Fed.  Rep.  411;  United  States  v.  Wilson, 
118  U.  S.  86,    And  see  United  States  v.  Am.  Bell  Tele- 


§  436  PROCEDTJEE.  1102 

phone  Co.,  29  Fed.  Rep.  17;  Phelps  v.  Elliott,  26  Fed. 
Rep.  881;  Nickferson  v.  Atchison  etc.  R.  R.  Co.,  30  Fed. 
Rep.  85;  WeUs  etc.  Co.  v.  Miner,  25  Fed.  Rep.  533.) 

In  admiralty. — The  admiralty  practice  is  grafted 
on  the  practice  in  Great  Britain,  and  if  a  change  has 
taken  place  the  practice  of  this  country  takes  the  pre- 
cedence. (Manro  v.  The  Almeida,  10  Wheat.  473;  The 
Delaware,  Olcott,  240;  Fed.  Cas.  No.  3762.)  A  dis- 
trict court  cannot  require  stipulators  against  whom  a 
decree  is  rendered  to  appear,  to  appear  in  supplement- 
ary proceedings.  (The  Blanche  Page,  16  Blatchf.  1; 
Fed.  Cas.  No.  1524.)  The  union  of  equitable  and  legal 
causes  of  action  in  one  suit  is  fox'bidden.  (Hurt  v. 
Hollingsworth,  100  U.  S.  100.  See,  generally,  Ex 
parte  Phenix  Ins.  Co.,  118  U.  S.  610.) 

§  436.  Practice  of  federal  courts  to  conform 
to  State  courts. — The  practice,  pleadings,  and 
forms  and  modes  of  proceeding  in  civil  causes, 
other  than  equity  and  admiralty  causes,  in  the 
circuit  and  district  courts,  shall  conform,  as  near 
as  may  be,  to  the  practice,  pleadings,  and  forms 
and  modes  of  proceeding  existing  at  the  time  in 
like  causes  in  the  courts  of  record  of  the  State  with- 
in which  such  circuit  or  district  courts  are  held, 
any  rule  of  court  to  the  contrary  notwithstand- 
ing.    (Rev.  Stats,  sec.  914.) 

Section  construed.— By  section  914  of  the  United 
Stales  Revised  Statutes  the  practice,  pleadings,  and 
forms  and  modes  of  proceeding  in  Federal  Courts 
are  required  to  conform  "as  near  as  may  be"  to  those 
existing  at  the  time  in  like  causes  in  the  courts  of 
record  of  the  States  in  whicli  cases  are  heard.  (Rob- 
ertson V.  Perkins.  129  U.  S.  233;  Lowndes  v.  Town  of 
Huntington,  153  U.  S.  1;  Whalen  v.  Sheridan,  10  Fed. 


1103  PROCEDURE.  §436 

Kep.  662;  18  Blatchf.  324;  Robinson  v.  Mut.  Ben.  L. 
Ins.  Co.,  16  Blatchf.  201;  Fed.  Cas.  No.  11961;  United 
States  V.  Brawner,  7  Fed.  Rep.  90;  Indianapolis  «fc  St. 
L.  R.  Co.  V.  Horst.  93  U.  S.  291;  Perry  v.  Mechanics' 
Mut.  Ins.  Co.,  11  Fed.  Rep.  478.)  This  applies  to  the 
provision  In  the  State  statute  that  allegations  of  the 
complaint  not  denied  in  the  answer  must  be  taken  as 
ti'ue.  (Robertson  v.  Perliins,  supra.)  Where  proce- 
dure is  regulated  by  a  statutory  code  it  governs  the 
practice  in  courts  of  the  United  States  sitting  therein 
in  common-law  cases  by  virtue  of  this  section. 
(United  States  v.  Parker,  120  U.  S.  89.)  So  pleadings 
and  practice  in  an  action  on  the  common-law  side  of 
the  Federal  Circuit  Court  are  governed  by  State  law, 
(Henderson  v.  Louisville  &  N.  R.  Co.,  123  U.  S.  61; 
Gamewell  Fire  Alarm  Tel.  Co.  v.  New  York,  31  Fed. 
Rep.  312;  Bond  v.  Dustin,  112  U.  S.  604;  Glenn  v. 
Sumner,  132  U.  S.  152.)  As  to  the  sufficiency  and 
scope  of  pleadings,  and  the  form  and  effect  of  verdicts 
in  actions  at  law,  the  circuit  courts  of  the  United 
States  are  governed  by  the  practice  of  the  courts  of 
the  State  in  which  they  are  held.  (Glenn  v.  Sumner, 
132  U.  S.  152.)  The  object  of  the  section  was  to  as- 
similate the  form  and  manner  in  which  the  pai'ties 
should  present  their  claims  and  defense  in  the  prepa- 
ration for  the  trial  of  suits  in  the  Federal  Courts,  to 
those  prevailing  in  the  State  courts.  (Ex  parte  Cha- 
teaugay  Ore  &  Iron  Co.,  128  U.  S.  544;  Lamaster  v. 
Keeler,  123  U.  S.  376.)  This  section  must  be  con- 
strued in  connection  with  Rev.  Stats,  sec.  918.  (Os- 
borne v.  Detroit,  28  Fed.  Rep.  385.)  The  indefinite- 
ness  of  the  expression  "as  near  as  may  be"  gives 
power  to  the  judge  to  reject  any  subordinate  provi- 
sion which,  in  his  judgment,  would  unwisely  encum- 
ber the  administration  of  the  law,  or  tend  to  defeat 
the  ends  of  justice.  (Gould  &  T.  notes  to  U.  S.  Rev. 
Stat.  285;  Indianapolis  &  St.  L.  R.  Co.  v.  Horst,  93 


§  436  PROCEDUBE.  1104 

r.  S.  301;  Hat-Sweat  Mfg.  Co.  v.  Davis  Sewing  Macti. 
Co.,  31  Fed.  Rep.  294;  Lowry  v.  Story,  31  Fed.  Rep. 
769;  Slierry  v.  Oceanic  Steam  Nav.  Co.,  72  Fed.  Rep. 
565;  O'Conuell  v.  Reed,  12  U.  S.  App.  369;  56  Fed.  Rep. 
531;  Sliepard  v.  Adams,  168  U.  S.  618. 

In  general.— The   remedies    in    the    courts    of   the 
United  States  are  to  be  at  common  law  or  in  equity, 
not  according  to  the  practice  of  the  state  courts,  but 
according  to  the  principles  of  common  law  and  equity. 
(Sheffield  Furnace  Co.  v.  Witherow,  149  U.  S.  574.) 
United  States  Courts  conform  as  near  as  may  be  to 
the  practice,   pleading,   and  modes   of  procedure   in 
civil  cases,  other  than  equity  or  admiralty,  with  the 
rules  of  practice  of  the  States  where  they  are  held. 
(Perry  v.  Mechanics'  Mut.  Ins.  Co.,  11  Fed.  Rep.  478.) 
This  section  only  assimilates  the  practice  as  near  as 
may  be.     (Whalen  v.  Sheridan,  10  Fed.  Rep.  662;  18 
Blatchf.    324;  Robinson    v.    Mut.    Ben.    Ins.    Co.,    16 
Blatchf.  201;  Fed.  Cas.  No.  11961;  U.  S.  v.  Brawner, 
7  Fed.  Rep.  90;     see  Indianapolis  &  St.  L.  R.  Co.  v. 
Horst,  93  U.  S.  291.)     It  adopts  only  a  statutory  pro- 
cedure  and   does   not  include     constructions  placed 
upon  common  law  remedies  by  State  courts  (Stanford 
V.  Portsmouth.  6  Cent.  L.  J.  146;  Fed.  Cas.  No.  12315), 
nor  does  it  apply  to  cases  where  Congress  has  legis- 
lated.    (Easton  v.  Hodges,  7  Biss.  324;  Fed.  Cas.  No. 
4258;  Allnut  v.  Lancaster,  76  Fed.  Rep.  131.)     In  such 
case  the  practice  is  exclusive,   and   courts  have  no 
power  to  authorize  another  mode.     (Parsons  v.  Bed- 
ford, 3  Peters,  433;  Teese  v.  Phelps,  McAlI.  17;  Fed. 
Cas.  No.  13818.)     The  practice  and  procedure  of  the 
State  courts  Is  adopted  in  absence  of  congressional 
legislation  on  the  subject  (Wear  v.  Mayer,  6  Fed.  Rep. 
660;  2  McCrary,  172),  and  it  can  go  no  further  than 
adopt  the  whole  State  statute  as  near  as  may  be. 
(U.  S.  V.  Brawner,  7  Fed.  Rep.  90.)     Where  Congress 
by  statute  points  out  a  specific  course  of  procedure, 


1105  PROCEDUUE.  §  436 

or  legislates  generally  on  the  subject  matter,   such 
legislation  must  be  followed.     (McNutt  v.  Bland,  2 
How.  17;  U.  S.  V.  Pings,  4  Fed.  Rep.  714;  D wight  v. 
Merrit,  4  Fed.  Rep.  616;  18  Blatchf.  305;  citing  Easton 
V.  Hodges,  7  Biss.  324;  Fed.  Cas.  No.  4258;  Beardsley 
V.  Little,  14  Blatchf.  102;  Fed,  Oas.  No.  1185;  U.  S. 
V.  Hutton,  25  Int.  Rev.  Rec.  57;  Fed.  Cas.  No.  15433; 
Allnut  V.  Lancaster,  76  Fed.  Rep.  131;  Ewing  v.  Burn« 
ham,  74  Fed.  Rep.  384;     United  States  v.  National 
Lead  Co.,  75  Fed.  Rep.  94.)     This  section  does  not 
apply  to  a  rule  of  practice  of  a  State  court  adopted 
subsequently  to  an  act  of  Congress  i*egulating  the 
practice  in  Federal   Courts.       (Wilcox  v.   Hunt,   13 
Peters,  378.)     It  does  not  by  implication  repeal  any 
previous  act  of  Congress  expressly  providing  a  par- 
ticular mode  of  proceeding.     (Wear  v.  Mayer,  6  Fed. 
Rep.  G60;  2  McCrary,  172.)     This  section  relates  to 
practice  and  procedure  in  suits  against  parties  prose- 
cuted in  Federal  Courts,  but  does  not  extend  it  over 
persons  and  causes  not  before  within  the  cognizance 
of  the  Federal  Court.     (Bath  Co.  v.  Amy,   13  Wall. 
244;  Main  v.  Second  Nat.  Banli,  6  Biss.  26;  Fed.  Caa. 
No.  8976.)     Congress  did  not  enlarge  the  jurisdiction 
of  Federal  Courts  by  adopting  the  State  practice  so 
as  to  extend  it  over  persons  not  within  the  jurisdic- 
tion.      (Toland  v.  Sprague,  12  Peters,  300;  Main  v. 
Second  Nat.  Bli.,  6  Biss.  26;  Fed.  Cas.  No.  8976;  Pic- 
quet  V.  Swan,  5  Mason,  35;  Fed.  Cas.  No.  8976.)    The 
above  section  does  not  require  Federal  Courts  to  fol- 
low State  decisions  in  matters  which  affect  their  jur- 
isdiction.    (O'Connell  v.  Reed,  12  U.  S.  App.  363;  66 
Fed.  Rep.  531.)     The  intention  is  to  secure  in  each 
State  one  method  of  procedure  in  all  common  law 
cases  by  adopting  in  general  the  procedure  of  the 
State  courts.    (Bills  v.  N.  O.  St.  L.  &  R.  Co.,  3  Blatchf. 
228;  Fed.  Cas.  No.  1409.)    The  statute  makes  a  distinc- 
tion between  common  law  cases  and  equity  and  ad- 
Fed.  Pboc— b3. 


§436  PKOCKDTJBE.  1106 

miralty  cases  as  to  forms  and  modes  of  procedure. 
(Steam  Stone  Cutter  Co.  v.  Sears,  9  Fed.  Rep.  9;  20 
Blatchf.  23;  Sanford  v.  Portsmouth,  6  Cent.  L.  J. 
147;  Fed.  Cas.  No.  12315;  Nudd  v.  Burrows,  91  U.  S. 
426;  Laidlaw  v.  Oregon  Ry.  &  Nav.  Co.,  48  U.  S.  App. 
430;  81  Fed.  Rep.  876);  and  applies  solely  to  common 
law  suits  (The  Blanche,  Page,  10  Blatchf.  5;  Fed.  Cas. 
No.  1524),  and  has  no  application  to  equity  suits. 
(Blease  v.  Garlington,  92  U.  S.  1;  Brooks  r.  Vermont 
C.  R.  Co.,  14  Blatchf.  471;  Fed.  Cas.  No.  1964;  Taylor 
V.  Holmes,  14  Fed.  Rep.  498;  Martindale  v.  Wass,  11 
Fed.  Rep.  551;  3  McCrary,  637;  Deprez  v.  Thoiuso  i. 
Houston  El.  Co.,  66  Fed.  Rep.  22;  Schoolfield  v. 
Rhodes,  82  Fed.  Rep.  153;  Missouri  K.  &  T.  Co.  v. 
Krumseig,  40  U.  S.  App.  620;  77  Fed.  Rep.  32;  Thomas 
V.  Nantahala  M.  Iv.  T.  Co.,  8  U.  S.  App.  429;  58  Fed. 
Rep.  485.)  It  does  not  authorize  legal  and  equitable 
remedies  to  be  blended  in  one  suit  (Lindsay  v.  First 
Nat.  Blv.,  156  U.  S.  485);  but  substantive  rules  of 
equity  law  administered  by  the  Federal  Courts  can 
be  abrogated  or  changed  by  State  statutes.  (^Missouri 
K.  &  T.  Co.  V.  Krumseig,  40  U.  S.  App.  020;  77  Fed. 
Rep.  32.)  So  the  practice  of  allowing  ejectments  to 
be  maintained  on  equitable  titles  cannot  affect  the 
jurisdiction  of  the  courts  of  the  United  States  (Fenn 
V.  Holme,  21  How.  481;  Hooper  v.  Scheimer,  23  How. 
235;  Sheirburn  v.  Cordova,  24  How.  423;  Robinson  v. 
Campbell,  3  Wheatou,  212);  and  so  to  answers  of  an 
action  at  common  law,  claiming  an  equitable  right. 
(D wight  V.  Merrit,  18  Blatchf.  305;  4  Fed.  Rep.  614; 
Republic  Ins.  Co.  v.  William,  3  Biss.  370;  Fed.  Cas. 
No.  11707;  see  Morgan  v.  Engers,  127  U.  S.  63;  School- 
field  V.  Rhodes,  82  Fed.  Rep.  153;  Davis  v.  Davis,  30 
U.  S.  App.  723;  72  Fed.  Rep.  81;  Johnson  v.  Merry 
Mount  Granite  Co.,  53  Fed.  Rep.  569.)  Where  the 
laws  of  a  particular  Stale  give  a  remedy  In  equity,  as 
for  instance  a  bill  by  a  party  in  or  out  of  possession 


1107  PKOCEDURE.  §436 

to  quiet  title  to  lands,  such  remedy  will  be  enforced  in 
the  Federal  Courts  if  it  does  not  infringe  upon  the 
party's  right  to  a  jury  trial.  (Greeley  v.  Lowe,  155 
U.  S.  58.) 

Procedure.— The  Federal  courts  will  follow  the 
form  of  action  of  a  State  court.  (Taylor  v.  Brigham, 
3  Woods,  377;  Fed.  Cas.  No.  13781.)  The  practice  of 
allowing  one  suit  on  a  bond  against  the  executor  of  a 
deceased  obligor  together  with  the  surviving  obligor 
may  be  followed.  (U.  S.  v.  Tracy,  8  Ben.  1;  Fed.  Cas. 
No.  16536;  U.  S.  v.  Lawrence,  14  Blatchf.  229;  Fed. 
Cas.  No.  1.5574.)  So  a  State  law  which  permits  a  joint 
action  against  the  malier  and  indorser  may  be  fol- 
lowed in  the  Federal  courts  (Fullerton  v.  Banlv,  1  Pet. 
604;;  and  an  action  of  replevin  may  be  sustained 
when  the  State  law  permits  it.  (Gibbs  v.  Usher,  1 
Holmes.  348;  Fed.  Cas.  No.  5387.)  Federal  courts 
may  include  in  one  attachment  suit  debts  due  and 
not  due  without  regard  to  State  practice.  (Bowden 
V.  Burnham,  19  U.  S.  App.  448;  59  Fed.  Rep.  752.) 
When  pending  cases  are  proceedings  at  law  they  are 
entitled  to  the  benefits  of  the  provisions  of  this  sec- 
tion (Moran  v.  City  of  Elizabeth,  9  Fed.  Rep.  73),  and 
the  first  inquiry  is,  what  is  the  practice  in  the  State 
courts  (Brown  v.  Phila.  &  C.  Co.,  9  Fed.  Rep.  185);  but 
a  party  who  has  a  mere  equitable  title  cannot  main- 
tain an  action  at  law  (Bennett  v.  Bitterworth,  11 
How.  669;  Penn  v.  Klyne,  Peters  C.  C.  497;  Fed.  Cas. 
No.  10935,  note;  Jones  v.  McMaster,  20  How.  9;  Green 
V.  Mezes,  24  How.  268;  U.  S.  v.  King,  7  How.  833; 
Robinson  v.  Campbell,  3  Wheat.  212);  nor  does  this 
section  adopt  the  State  law  allowing  equitable  de- 
fenses in  a  legal  action.  (Montejo  v.  Owen,  14 
Blatchf.  324;  Fed.  Cas.  No.  9722;  La  Mothe  Manuf.  Co. 
V.  Nat.  Tube  Works,  15  Blatchf.  432;  Fed.  Cas.  No. 
8033.)  Where  a  State  abolishes  fictitious  proceedings 
and  establishes  in  their  place  the  action  of  trespass, 


§  436  PROCEDURE.  1108 

'  for  the  purpose  of  trying  the  title  to  lands  and  recov- 
ery of  their  possession,  this  section  applies.  (Sears 
V.  Bastburn,  10  How.  187.)  This  section  applies  to 
mandamus  as  a  remedy  to  compel  municipal  corpora- 
tions to  levy  a  tax  to  pay  a  judgment  creditor.  (U.  S. 
V.  City  of  Keokuk,  6  Wall.  514;  see  Wisdom  v.  Mem- 
phis, 8  Cent.  L.  J.  109;  Fed.  Cas.  No.  17903.)  Practice 
in  mandamus  proceedings  when  ancillary  are  not  af- 
fected by  this  section  (U.  S.  v.  Union  Pac.  K.  R.  Co., 
2  Dill.  527;  Fed.  Cas.  No.  16599);  otherwise  they  are 
governed  by  the  State  law.  (Moran  v.  City  of  Eliza- 
beth, 9  Fed.  Rep.  72.)  A  proceeding  to  restore  a  lost 
record  is  sui  generis,  and  is  governed  by  act  of  Con- 
gress. (Turner  v.  Newman,  3  Biss.  307;  Fed.  Cas. 
No.  14262.) 

What  not  embraced  within  this  section.— The  Su- 
preme Court  is  not  governed  in  the  matter  of 
its  own  process  by  the  varying  laws  of  the 
States  and  Territories  upon  the  subject.  (Tripp  v. 
Santa  Rosa  St.  R.  R.  Co.,  144  U.  S.  126.)  Questions 
of  power  and  authority  of  the  court  are  not  embraced 
within  this  section.  (Lyons  v.  Lyons  Nat.  Bank,  8 
Fed.  Rep.  373.)  This  section  does  not  apply  to  mat- 
ters which  are  regulated  exclusively  by  acts  of  Con- 
gress, or,  when  Congress  is  silent,  by  methods  de- 
rived from  the  common  law,  from  ancient  English 
statutes,  or  from  the  rules  and  practice  of  the  courts 
of  the  United  States.  (Ex  parte  Chateaugay  Ore  & 
Iron  Co.,  128  U.  S.  544;  Whalen  v.  Sheridan,  18 
Blatchf.  324;  10  Fed.  Rep.  661;  United  States  v. 
Train,  12  Fed.  Rep.  852;  Lamaster  v.  Keeler,  123  U.  S. 
376;  Easton  v.  Hodges,  7  Biss.  324;  Fed.  Cas.  No. 
42.j8;  McNutt  v.  Bland.  2  How.  17;  United  States  v. 
Pings,  4  Fed.  Rep.  715;  D wight  v.  Merritt,  4  Fed.  Rep. 
616;  18  Blatchf.  305;  Beardsley  v.  Littell,  14  Blatchf. 
102;  Fed.  Cas.  No.  1185;  United  States  v.  Hutton,  10 
Ben.  268;  25  Int.  Rev.  Rec.  57;  Fed.  Cas.  No.  15433; 


1109  PEOCEDUEE.  §436 

Consumer's  Cotton  Oil  Co.  v.  Ashbiirn,  81  Fed.  Rep. 
331;  Ewing  v.  Burnham,  74  Fed.  Rep.  384;  United 
States  V.  National  Lead  Co.,  75  Fed.  Rep.  94.)  The 
personal  conduct  and  administration  of  ttie  judge 
in  the  discharge  of  his  separate  functions,  is  not  prac- 
tice or  pleading,  or  a  form  or  mode  of  proceeding 
within  the  meaning  of  the  terms  of  this  section.  (Ex 
parte  Chateaugay  Ore  &  Iron  Co.,  128  U.  S.  544;  Nudd 
T.  Burrows,  91  U.  S.  42G.)  The  provision  in  a  State 
statute  prescribing  that  the  judge  shall  require  the 
jury  to  answer  special  interrogatories,  in  addition  to 
finding  a  general  verdict,  does  not  apply  to  courts  of 
the  United  States  under  this  section.  (Indianapolis 
&  St.  L.  R.  Co.  V.  Horst,  93  U.  S.  291;  Newcomb  v. 
Wood,  97  U.  S.  581.)  This  section  does  not  extend  to 
the  means  of  enforcing  or  revising  a  decision  once 
made  by  the  Circuit  Court,  nor  does  it  extend  to  pro- 
ceedings to  enforce  a  judgment  which  is  provided 
for  by  section  916.  (Ex  parte  Chateaugay  Ore  &  Iron 
Co.,  128  U.  S.  544;  Lamaster  v,  Keeler,  123  U.  S.  376.) 
The  section  does  not  extend  to  rules  prescribed  by  a 
State  statute  regulating  trials,  and  prescribing  that 
in  trials  without  a  jury  propositions  of  law  may  be 
submitted  to  the  court  and  a  ruling  required  in  order 
to  lay  a  foundation  for  a  writ  of  error.  (United  States 
V.  Indian  Grave  Drainage  Dist.,  U.  S.  App.,  85  Fed. 
Rep.  928.)  The  section  applies  to  systems  of  judi- 
cial procedure,  not  to  details  of  doing  the  business  of 
the  courts,  which  are  left  to  be  provided  for  by  rules 
of  court.  Rules  regulating  the  time  of  returning 
writs  and  doclieting  causes  are  not  abrogated  by  a 
State  statute  on  that  subject.  (Ewing  v.  Burnham, 
74  Fed.  Rep.  384.)  The  Federal  courts  are  not  re- 
quired by  the  above  section  to  adopt  every  subordi- 
nate provision  of  the  State  code.  (Sherry  v.  Oceanic 
Steam  Nav.  Co.,  72  Fed.  Rep.  565.) 


§  436  PKOCEDUKE.  1 1 10 

Joinder  of  parties.— "When  the  State  allows  an  in- 
tervention the  same  practice  may  be  followed.  (Bank 
V,  Labitut,  1  Woods,  11;  Fed.  Cas.  No.  842;  Feather- 
man  V.  Louisiana  State  Seminary,  2  Woods,  71;  Fed. 
Cas.  No.  4713.)  A  provision  as  to  when  an  adminis- 
trator may  apply  to  be  made  a  party  is  adopted  under 
this  section.  (Barker  v.  Ladd,  3  Sawy.  44;  Fed.  Cas. 
No.  990.)  If  all  parties  liable  on  a  bond  may  be  joined 
in  the  State  court,  they  may  be  joined  in  the  Federal 
Court  (U.  S.  V.  Tracy,  8  Ben.  1;  Fed.  Cas.  No.  16536); 
and  although  a  bond  is  made  to  an  agent,  the  princi- 
pal may  sue  in  his  own  name  if  the  State  law  allows 
it.  (Weed  Sew.  Mach.  Co.  v.  Weeks,  3  Dill.  261;  Fed. 
Cas.  No.  17348.)  Where  the  State  law  makes  an  oral 
transfer  by  the  insured  after  loss  of  his  right  of  ac- 
tion on  the  policy  valid,  the  assignee  may  sue.  (Ben- 
nett V.  Marj'land  &  F.  Ins.  Co.,  14  Blatchf.  422;  Fed. 
Cas.  No.  1321.)  Where  the  State  law  provides  that 
no  action  will  be  defeated  on  account  of  misjoinder 
of  parties,  the  Federal  Court  will  conform  to  the  rule. 
(Perry  v.  Mech.  Mut.  Ins.  Co.,  11  Fed.  Rep.  478.)  Al- 
though the  Federal  Courts  may  not  be  bound  by  a 
State  law  authorizing  a  foreclosure  suit  to  be  main- 
tained against  the  administrator  without  joining  his 
widow  and  heirs,  they  will  not,  in  an  action  to  quiet 
title,  overturn  a  title  acquired  under  a  foreclosure  in 
the  State  courts  to  which  the  widow  and  heirs  were 
not  parties.     (Hearfield  v.  Bridge,  67  Fed.  Rep.  333.) 

Rules  of  pleading. — All  defenses  are  open  to  de- 
fendant in  the  circuit  court  under  any  form  of  plea, 
answer,  or  demurrer  which  would  have  been  open  to 
him  under  like  pleading  in  the  courts  of  the  State. 
(Roberts  v.  Lewis,  144  U.  S.  653.)  This  section  ap- 
plies to  the  rules  of  pleading  (Oscanyan  v.  Winches- 
ter Arms  Co..  15  Blatchf.  79;  Fed.  Cas.  No.  10600; 
Taylor  v.  Brigham,  3  Woods,  377;  Fed.  Cas.  No.  13781; 
I-ewis  V.  Gould,  13  Blatchf.  216;  Fed.  Cas.  No.  8324), 


I 


1 1 1 1  PROCEDURE.  §  436 

and  to  the  time  of  filing  the  declaration  after  being 
returned  "summoned"  (Ricard  v.  New  Providence,  6 
Fed.  Rep.  434);  but  not  to  the  signature  to  a  bill. 
(Stinson  v.  Hildrap,  8  Biss.  376;  Fed.  Cas.  No.  13459.) 
It  applies  to  the  mode  of  amending  the  complaint  as 
of  course  (Rosenbach  v.  Drey  fuss,  1  Fed.  Rep.  393; 
West  V.  Smith,  101  U.  S.  263),  as  by  striliing  out  a 
plaintiff  or  adding  a  plaintiff.  (Whitaker  v.  Pope,  2 
Woods,  463;  Fed.  Cas.  No.  17.528.)  But  the  right  of 
amendment  exists  independently  of  any  State  stat- 
ute. (Bowden  v.  Burnham,  19  U.  S.  App.  448;  59  Fed. 
Rep.  752.)  Pleadings  not  authorized  in  the  St.ite 
court  in  a  lilie  suit  will  be  set  aside  on  motion.  (Lew- 
is V.  Gould,  13  Blatchf.  216;  Fed.  Cas.  No.  8324.)  On 
removal  of  a  cause  no  other  or  different  pleadings  are 
necessary.  (Merch.  &  Manuf.  Bk.  v.  Wheeler,  13 
Blatchf.  218;  Fed.  Cas.  No.  9439.)  This  section  does 
not  apply  to  the  rule  of  setoff,  which  is  exclusively 
under  the  laws  of  the  United  States.  (U.  S.  v.  Robe- 
son, 9  Peters,  319.)  If  the  State  law  a,llows  a  party 
to  take  advantage  of  the  statute  of  limitations  by  de- 
murrer, he  may  do  so  in  the  federal  courts.  (Che- 
mung Canal  Bk.  v.  Lowrey,  93  U.  S.  72.)  In  com- 
mon-law actions,  the  sufficiency  of  the  pleadings  is  to 
be  determined  by  the  State  code  of  procedure.  (Cas- 
tro V.  De  Uriarte,  12  Fed.  Rep.  251;  Rush  v.  Newman, 
12  U.  S.  App.  635;  58  Fed.  Rep.  158.)  So  of  the  suf- 
ficiency of  a  plea.  (U.  S.  v.  Tilton,  7  Ben.  306;  Fed. 
Cas.  No.  16525.)  Provisions  as  to  pleadings  in  the 
United  States  courts,  found  in  United  States  Revised 
Statutes,  section  4920,  which  was  passed  in  1874, 
must  control  the  general  provisions  of  section  914, 
passed  in  1872.  (Myers  v.  Cunningham,  44  Fed.  Rep. 
346.)  Though  a  defendant  be  permitted  by  the  State 
practice  and  rules  of  pleading  to  unite  a  plea  to  the 
jurisdiction  with  pleas  to  the  merits,  he  need  not  nec- 
essarily do  so.  (Jones  v.  Rowley,  73  Fed.  Rep.  286.) 
A  State  statute  allowing  a  champertous  agreement 


§436  PKOCEDUEE.  1112 

to  be  set  up  in  a  plea  in  abatement  in  the  action  to 
which  it  relates  is  not  a  I'ule  of  pi'actice,  and  is  not 
binding  on  the  Federal  courts.  (Byrne  v.  Kansas 
Ci:y.  Ft.  Scott  S.  &  M.  Go.,  55  Fed.  Rep.  44.)  The 
practice  of  the  State  is  controlling  as  to  the  form  of 
the  action.  (Lowndes  v.  Town  of  Huntington,  153 
U.  S.  1.) 

Practice.— It  applies  to  the  requirement  to  answer 
interrogatories  as  a  substitute  for  a  bill  of  discovery 
(Bryant  v.  Leyland,  6  Fed.  Rep.  126).  and  to  oi'dering 
a  proceeding  to  substitute  one  defendant  for  another 
(Han-is  v.  Hess,  10  Fed.  Rep.  2G3;  20  Blatchf.  253)  and 
to  all  motions  at  common  law  required  by  the  prac- 
tice at  a  special  term  of  the  State  court,  in  a  stated 
term  of  the  Federal  court  (Emma  S.  M.  Co.  v.  Park> 
14  Blatchf.  411;  Fed.  Cas.  No.  4467;  Nazro  v.  Crogin, 
3  Dill.  474;  Fed.  Cas.  No.  100G2;  Republic  Ins.  Co.  v. 
Williams,  3  Biss.  370;  Fed.  Cas.  No.  11707),  but  it  does 
not  apply  to  ordering  a  peremptory  nonsuit  against 
the  will  of  the  plaintiff.  (Elmore  v.  Grymes,  1  Pet- 
ers, 471.)  It  applies  to  notice  of  hearing  for  the  trial 
of  an  issue  of  law  on  a  demun-er  (Rosenbach  v.  Drey- 
fuss,  2  Fed.  Rep.  23);  but  a  State  law  regulating  the 
filing  of  a  lis  pendens  does  not  apply  to  Federal 
courts.  (Majors  v.  Cbwell,  51  Gal.  478;  see  U.  S.  v. 
Stevenson.  1  Abb.  G.  G.  4^5;  Fed.  Gas.  No.  16395.)  A 
State  law  authorizing  dismissal  of  a  suit,  and  which 
prohibits  reinstatement  unless  at  the  next  term,  is  not 
covered  by  this  section.  (Mutual  Build.  Fund  v. 
Bossieux,  1  Hughes,  386;  Fed.  Gas.  No.  9977.)  There 
is  no  authority  to  refer  an  action  to  referees  without 
consent  of  parties,  although  the  State  court  may 
(Howe  Mach.  Co.  v.  Edwards,  15  Blatchf.  402;  Fed. 
Gas.  No.  6784);  but  if  the  parties  consent  the  rule  of 
the  State  applies.  (Parlier  v.  Ogdensburgh  &  L.  O. 
R.  Co.,  51  U.  S.  App.  88;  79  Fed.  Rep.  817.)     This  sec- 


1113  PKOCEDURE.  §436 

tion  has  no  reference  to  the  designation  of  jurors. 
<U.  S.  V.  Collins,  1  Woods,  499;  Fed.  Oas.  No.  14837.) 
A  State  law  as  to  instiiictions  to  the  jury  has  no  ap- 
plication to  Federal  courts  (Indianapolis  &  St.  Louis 
R.  R.  Co.  V.  Horst,  93  U.  S.  291;  Hawliin  v.  Squires, 
5  Biss.  186;  Fed.  Cas.  No.  6025;  McElwee  v.  Metropol- 
itjan  Lumber  Co.,  37  U.  S.  App.  266;  69  Fed.  Rep.  302; 
City  of  Lincoln  v.  Power,  151  U.  S.  436),  as  the  rule 
that  the  court  may  direct  a  verdict  for  defendant 
where  the  evidence  is  insufficient  to  warrant  a  verdict 
for  plaintiff.  (Sloss  Iron  &  Steel  Co.  v.  South  Car.  & 
O.  R.  Co.,  42  U.  S.  App.  748;  85  Fed.  Rep.  133.)  Ques- 
tions of  power  and  authority  of  the  court  are  not 
embraced  within  this  section.  (Town  of  Lyons  v. 
Lyons  Nat.  Bli.,  8  Fed.  Rep.  373;  19  Blatchf.  279.) 
This  section  was  not  intended  to  fetter  the  judge  in 
the  personal  discliarge  of  his  accustomed  duties,  or  to 
trench  upon  the  common-law  powers  with  which  he  is 
clothed.  (U.  S.  Mut.  Ace.  Asso.  v.  Barry,  131  U.  S. 
100.)  A  federal  court  is  not  required  to  submit  a 
special  verdict  as  provided  by  the  rules  of  practice  in 
the  State  (U.  S.  Mut.  Ace.  Asso.  v.  Bariy,  131  U.  S. 
100);  and  State  constitution  carmot,  any  more  than 
a  State  statute,  prohibit  judges  of  the  court  of  the 
United  States  from  charging  juries  with  regard  to 
matters  of  fact.  (St.  Louis  1.  M.  &  S.  R.  Co.  v.  Vick- 
ers,  122  U.  S.  360.)  So  remedies  in  the  United  States 
courts  are  at  common  law  or  in  equity,  and  are  un- 
controlled in  that  particular  by  the  practice  of  the 
State  courts.  (New  Orleans  v.  Louisiana  Construc- 
tion Co.,  129  U.  S.  45.)  Although  the  forms  of  pro- 
ceeding and  practice  in  the  State  courts  have  been, 
as  near  as  may  be,  adopted  in  the  circuit  and  district 
courts  of  the  United  States,  yet  this  must  not  be  un- 
derstood as  authorizing  an  equitable  defense  to  an  ac- 
tion at  law,  or  the  blending  of  legal  and  equitable 
claims  in  one  suit  (Doe  v.  Roe,  31  Fed.  Rep.  97;  Herli- 


§436  PKOCEDURE.  1114 

lotz  V.  Chase,  32  Fed.  Eep.  433);  but  such  defense 
must  be  enforced  by  a  bill  in  equity  to  stay  the  suit 
at  law.  (Wood  v.  Consolidated  Electric  Light  Co., 
36  Fed.  Rep.  538.)  Equity  suits  in  the  Federal  courts 
are  regulated,  not  by  a  State  statute,  but  by  the  ju- 
diciai-y  acts  and  the  rules  of  equity  practice  adopted 
for  and  governing  said  courts.  (United  States  v. 
American  Bell  Teleph.  Co.,  29  Fed.  Rep.  17.)  Courts 
of  the  United  States  are  not  governed  by  the  statute 
or  practice  of  the  State  courts  as  to  motions  for  new 
trial  and  bills  of  exceptions.  (Fishburn  v.  Chicago 
M.  &  St.  r.  R.  Co.,  137  U.  S.  60;  Hughey  v.  Sullivan,. 
80  Fed.  Rep.  72;  United  States  v.  Seifert  Bros.  Co., 
78  Fed.  Rep.  520;  United  States  v.  Taafe,  78  Fed.  Rep. 
524;  New  York  &•  N.  E.  R.  Co.  v.  Hyde,  5  U.  S.  App. 
443;  56  Fed.  Rep.  188;  Lowry  v.  Mt.  Adams  &  Eden 
Parli  I.  P.  Co.,  68  Fed.  Rep.  827);  but  when  an  action 
of  ejectment  is  tried  in  the  circuit  court,  according 
to  the  statutory  mode  of  proceeding,  that  court  is  gov- 
erned by  the  provision  of  the  State  statute  concern- 
ing new  trials.  (Smale  v.  Mitchell,  143  U.  S.  99.)  The 
Revised  Statutes,  sections  914,  915,  authorizing  the 
practice  and  procedure  in  federal  courts  to  conform 
to  those  of  the  respective  States,  do  not  give  a  United 
States  circuit  court  sitting  in  Connecticut  jurisdiction 
of  proceedings  in  rem  against  the  property  of  a  non- 
resident defendant,  who  has  not  been  pex'sonally 
served  or  appeared.  (Harland  v.  U.  S.  Tel.  Co.,  40 
Fed.  Rep.  308.)  Under  the  above  section,  where  an 
assignee  of  a  chose  in  action  cannot  sue  thereon  in  his 
own  name  in  the  courts  of  the  State,  the  same  rule 
is  obligatory  on  Federal  cotirts  lield  within  such 
States.  (Nederland  Life  Ins.  Co.  v.  Hall,  55  U.  S. 
App.  598;  84  Fed.  Rep.  278.)  A  Stiite  statute  dispens- 
ing with  the  requirement  that  exceptions  to  the 
charge  be  taken  while  the  jury  is  at  the  bar  will 
not  be  followed  by  the  Federal  courts.     (Consumer's 


1115  PBOCEDURE.  §  436 

Cotton  Oil  Oo.  V.  Ashburn.  81  Fed.  Rep.  331.)  The 
practice  in  the  Federal  courts  in  relation  to  the  in- 
spection of  papers  for  the  purpose  of  aiding  a  party 
in  preparing  for  trial  is  regulated  by  the  practice  in 
the  State  court.  IFrescole  v.  City  of  Lancaster,  70 
Fed.  Rep.  337.) 

Rules  of  evidence. — This  section  does  not  extend  to 
rules  of  evidence  (Conn.  Mut.  L.  Ins.  Go.  v.  Schaefer, 
94  U.  S.  457;  Beardsley  v.  Littell,  14  Blatchf.  102;  Fed. 
Cas.  No.  1185;  see  contra.  Hinds  v.  Keith,  13  U.  S. 
App.  222;  57  Fed.  Rep.  10);  as  state  provision  for  ex- 
amination of  a  witness  before  trial.  (Beardsley  v.  Lfit- 
teU,  14  Blatchf.  102;  Fed.  Cas.  No.  1185.)  Such  ex- 
amination of  a  party  before  trial  is  allov^ed  only 
when  depositions  before  trial  are  authorized  by  the 
Revised  Statutes.  (Easton  v.  Hodges,  7  Biss.  324; 
Fed.  Cas.  No.  4258;  Corbett  v.  Gibson,  16  Blatchf.  336; 
Fed.  Cas.  No.  3222.)  If  the  State  law  gives  the  right 
to  a  party  to  require  testimony  to  be  talcen  in  writ- 
ing, this  practice  must  prevail.  (Parsons  v.  Bedford, 
3  Pet.  433.)  A  State  statute  requiring  eveiy  deposi- 
tion intended  to  be  read  on  the  trial  to  be  filed  at 
least  one  day  before  the  day  of  trial  does  not  apply 
to  the  federal  courts.  (Walker  v.  Collins,  13  U.  S. 
App.  222  and  314;  59  Fed.  Rep.  70.)  The  practice  in 
taking  depositions  is  regulated  by  this  section  (Sage 
V.  Tauszky,  6  Cent.  L.  J.  7;  Fed.  Cas.  No.  12214);  but 
not  to  depositions  de  bene  esse  (U.  S.  v.  Tilden,-  25 
Int.  Rev.  Rec.  352;  Fed.  Cas.  No.  16522);  nor  to  the 
mode  of  executing  the  commission  (U.  S.  v.  Pings,  4 
Fed.  Rep.  714);  nor  does  it  govern  the  production  of 
books  and  writings.  (Easton  v.  H6dges,  7  Biss.  324; 
Fed.  Cas.  No.  4258.)  Where  matter,  as  the  produc- 
tion of  books  and  documents,  is  expressly  regulated 
by  Congress,  it  is  not  a  matter  in  which  by  this  sec- 
tion the  practice  of  the  State  courts  is  adopted.     (U. 


§436  PKOCEDUKE.  1116 

S.  V.  Hutton,  10  Ben.  269;  Fed.  Cas.  No.  15433.  See, 
generallj^  Vance  v.  Campbell,  1  Black,  427;  McNiel 
V.  Holbrook,  12  Pet.  84;  Thompson  v.  Central  Ohio 
E.  R.  Co.,  6  Wall.  134.)  State  rules  are  always  fol- 
lowed in  commercial  cases.  (Wright  v.  Bales,  2 
Black,  535.)  But  it  is  only  in  cases  not  provided  for 
in  the  statutes  of  the  Unitetl  States  that  the  laws  of 
the  State  in  which  the  court  is  sitting  prevail.  (King 
V.  Worthington,  104  U.  S.  44;  Potter  v.  ThiM  Nat. 
Banlj  of  Chicago,  102  U.  S.  163;  Ex  parte  Fisk,  113 
U.  S.  713.) 

Judgments  and  decrees. — A  judgment  may  be  en- 
tered according  to  the  facts  alleged  and  proved,  with- 
out regard  to  the  form  of  pleading  if  it  is  the  prac- 
tice under  the  State  law,  (Whalen  v.  Sheridan,  10 
Fed.  Rep.  661;  18  Blatehf.  321.)  A  judgment  may  be 
entered  against  one  of  several  defendants,  if  the  State 
law  permits  it.  (Sawln  v.  Kenny,  93  U.  S.  289.)  A 
judgment  may  be  entered  against  sureties  on  a  super- 
sedeas bonxl  after  a  retm-n  of  nulla  bona,  if  the  State 
law  permits  it.  (Hiriart  v.  Ballou.  9  Pet.  156;  Smith 
v.  Gaines,  93  U.  S.  341.)  So  if  the  State  law  permits 
judgment  ag:iinst  a  marshal  on  motion  for  money  not 
paid  over  (Gwin  v.  Breedlove,  2  How.  29);  but  it  can- 
not enforce  against  a  marshal  a  penalty  allowed  by  a 
State  law  for  omitting  to  pay  over  money  collected 
on  execution.  (Gwin  v.  Breedlove,  2  How.  29.)  It  is 
irregular  to  enter  judgment  on  a  referee's  report 
without  an  application  to  the  court,  that  being  the 
practice  in  the  State  court.  (Fourth  Nat.  Bank  v, 
Neyhardt,  13  Blatehf.  393;  Fed.  Cas.  No.  4991.)  Judg- 
ments and  decrees  are  liens  when  made  so  by  State 
statutes.  (Ward  v.  Chaml)erlaiu,  2  Black,  430.)  A 
State  law  requiring  a  judge  to  give  his  decision  in 
writing  is  not  binding  on  the  Federal  courts.  (Mar- 
tindale  v.  Wass,  11  Fed.  Rep.  551;  3  MeCtary,  637.) 
If  an  order  against  a  gai'nishee  is  not  a  judgment  un- 


1117  PEOCEDUEE.  §436 

der' state  law,  it  is  not  in  tlie  Federal  courts.  (Atlan- 
tic &  Fac.  E.  Co.  V.  Hopkins,  94  U.  S.  11.)  The  Fed- 
eral courts  follow  the  State  practice  as  to  allowance 
of  interest  on  judgments.  (Moran  v.  Hagerman,  69 
Fed.  Kep.  427.)  The  practice  of  a  State  court  in  open- 
ing judgments  or  decrees  by  default  after  the  term  at 
which  they  became  absolute  will  not  be  observed  in 
a  suit  in  equity  in  a  Federal  court.  (Austin  v.  Riley, 
55  Fed.  Eep.  833.) 

Writs  of  error  and  review. — This  section  does  not 
extend  to  enforcing  or  revising  decisions  once  made. 
(U.  S.  V.  Train,  12  Fed.  Rep.  853.)  The  rules  of  State 
practice  have  no  application  to  writs  of  error  or  bills 
of  exceptions.  (Whalen  v.  Sheridan,  18  Blatchf.  308; 
S.  C.  5  Fed.  Rep.  436;  Marye  v.  Stxouse,  5  Fed.  Rep. 
494;  Muller  v.  Ehlers,  91  U.  S.  251.)  Appellate  pro- 
ceodings  in  the  Federal  courts  are  not  controlled  by 
State  practice.  (Kentucky  Life  &  Ace.  Ins.  Co.  v. 
Hamilton,  22  U.  S.  App.  386  and  548;  GS  Fed.  Rep.  93; 
Fleitas  v.  Richardson,  147  U.  S.  538;  Duncan  v.  Atch- 
ison T.  &  Santa  Fe  R.  Co.,  44  U.  S.  App.  427;  72  Fed, 
Rep.  808.)  And  the  State  law  allowing  a  second  trial 
is  not  applicable.  (Newcomb  v.  Wood,  97  U.  S.  581; 
Cady  V.  Phoenix  F.  Ins.  Co.,  18  Int.  Rev.  Rec.  30;  Fed. 
Cas.  No.  2284.)  It  is  doubtful  whether  cases  tried  in 
the  circuit  court  by  a  referee,  in  States  where  such  a 
practice  exists,  can  be  reviewed  in  the  supreme  court. 
(Boogher  v.  Life  Ins.  Co.,  103  U.  S.  90;  see  Bridges  v. 
Sheldon,  18  Blatchf.  295;  7  Fed.  Rep.  17;  Robinson  v. 
Mut.  Ben.  L.  lus.  Co.,  16  Blatchf.  194;  Fed.  Cas.  No. 
11961.)  There  is  nothing  in  this  section  wbich  extends 
to  or  affects  the  power  of  Federal  courts  on  a  writ  of 
eiTor.  (Town  of  Lyons  v.  Lyons  Nat.  Bank,  8  Fed. 
Rep.  369;  19  Blatchf.  279;  Whalen  v.  Sheridan,  18 
Blatchf.  308;  5  Fed.  Rep.  436.  See  Baker  r.  Power,  124 
U.  S.  167.)  What  constitutes  the  final  record  in  the 
circuit  court  is  a  matter  contx-olled  by  State  statute. 
Fed.  Pkuc— y-t. 


§436  PEOCEDURE.  1118 

wlien  covered  by  such  a  statute.  (Smith  v.  Mclntyre, 
84  Fed.  Rep.  721.)  The  practice  in  the  cii'cuit  courts 
embracing  the  preparation,  settling  and  signing  of 
bills  of  exception  is  not  governed  by  the  rules  of  the 
State  courts.  (Prichard  v.  Budd,  42  U.  S.  App.  186; 
76  Fed.  Rep.  710.)  The  question  of  what  constitutes 
a  final  decree  for  the  purposes  of  appeal  is  not  gov- 
erned by  procedvu-e  in  the  State  courts.  (Elder  v. 
McClaskey,  37  U.  S.  App.  1,  199;  70  Fed.  Rep.  529.) 

Costs. — A  decision  of  the  supreme  court  of  a  State 
that  a  provision  in  a  mortgage,  to  the  effect  that  in 
case  of  foreclosure,  a  certain  sum  therein  named 
should  be  allowed  as  attorney's  fees  was  invalid,  is 
binding  on  the  Federal  courts.  (Gray  v.  Havemeyer, 
10  U.  S.  App.  456;  53  Fed.  Rep,  174;  Willard  v.  Ser- 
peU,  62  Fed.  Rep.  625.) 

Forms  of  State  process. — The  forms  of  process  for 
commencement  of  suits  conform  to  the  State  process 
under  this  section,  except  as  to  the  signature  of  the 
attorney,  which  is  provided  for  by  act  of  Congress, 
section  911,  Revised  Statutes  (Brown  v.  Pond,  5  Fed. 
Rep.  37;  see  Ricard  v.  New  Providence,  5  Fed.  Rep. 
434);  but  it  does  not  authorize  commencement  of  an 
action  by  summons  in  the  name  of  plaintiff's  attorney, 
although  authorized  by  State  laws.  (Martin  v.  Cris- 
cuola,  10  Blatchf.  211;  Fed.  Cas,  No.  9159.)  It  adopts 
the  effect  as  well  as  the  form  of  the  State  process. 
(Bank  of  U.  S.  v.  Halstead,  10  Wheat.  51.)  A  rule  of 
the  district  court  for  the  service  of  process  need  not 
sti'ictly  conform  to  State  statutes  on  the  subject,  but 
the  court  may  legitimately  exercise  a  discretion  as  to 
the  conformity.  (Shepard  v.  Adams,  168  U.  S.  618.) 
Under  this  section  old  forms  of  process  for  the  com- 
mencement of  common-law  actions  have  been  super- 
seded by  summons,  except  as  to  the  mode  of  attesta- 


1119  PROCEDUEE.  §436 

tion,  which  is  provided  for  by  Revised  Statutes,  sec- 
tion 911  (Brown  v.  Pond,  5  Fed.  Rep.  37;  Peaslee  v. 
Haberstro,  15  Blatchf.  472;  Fed.  Cas.  No.  10884; 
D wight  v.  Merritt,  18  Blatchf.  305;  4  Fed.  Rep.  614), 
which  section  is  not  inconsistent  with  or  repealed  by 
this  section.  (Dwight  v.  Merritt,  IS  Blatchf.  306; 
4  Fed.  Rep.  614;  Peaslee  v.  Haberstro,  15  Blatchf.  472; 
Fed.  Cas.  No.  10884.)  Attachment  process  and  pro- 
cedure are  adopted  by  this  section.  (Steam  Stone  Co. 
V.  Sears,  9  Fed.  Rep.  8.)  But  an  affidavit  for  garnish- 
ment is  amendable  in  the  Federal  court,  notwith- 
standing the  decisions  of  the  State  court  hold  it  to  be 
not  amendable.  (Booth  v.  Denike,  65  Fed.  Rep.  43.) 
It  applies  to  process  by  which  suits  are  brought  and 
its  mode  of  service  (Brownell  v.  Ti-oy  &  Boston  R: 
Co.,  18  Blatchf.  245;  3  Fed.  Rep.  761;  Dwight  v.  Mer- 
ritt, 18  Blatchf.  305;  4  Fed.  Rep.  614;  Springer  v. 
Foster,  2  Story,  383;  Fed.  Cas.  No.  13266;  Perkins  v. 
Watei-town,  5  Biss.  320;  Fed.  Cas.  No.  10991)  to  a 
writ  of  scire  of  facias  in  reciting  a  judgment  on  a 
prior  scire  facias.  (Brown  v.  Chesapeake  etc.  C.  Co., 
4  Fed.  Rep.  771.)  A  suit  for  a  penalty  in  the  circuit 
court,  as  provided  by  act,  1885,  chapter  164,  section 
3,  for  violation  of  the  alien  contract  labor  laws  may 
be  properly  begun  by  capias  in  accordance  with  State 
laws.  (United  States  v.  Banister,  70  Fed.  Rep.  44.) 
Where  State  laws  allow  a  subpoena  to  be  served  by 
a  private  person,  such  service  is  good  in  the  Federal 
courts.  (Cummings  v.  Akron  C.  &  P.  Co.,  6  Blatchf. 
509;  Fed.  Cas.  No.  3473;  Shwabacker  v.  Reilly,  2  Dili. 
127;  Fed.  Cas.  No.  12501.)  Process  may  be  served  by 
the  marshal,  or  his  deputy,  notwithstanding  the  State 
law  as  to  a  private  person.  (Shwabacker  v.  Reilly,  2 
Dill.  127;  Fed.  Cas.  No.  12501.)  State  laws  as  to  ex- 
emption from  levy  and  sale  on  execution  vdll  be  fol- 
lowed.   (In  re  Vogler,  2  Hughes,  297;  Fed.  Cas.  No. 


§436  PROCEDUKE.  1120 

16986;  In  re  Appold,  6  Phila.  469;  In  re  Ruth,  6  Phila. 
438;  Fed.  Cas.  No.  12172.)     So,  also,  as  to  the  notice 
and  mode  and  time  o^  sale  under  execution.     (Mon- 
cure  V.  Zunts,  11  Wall.  416;  Smith  v.  CockrUl,  6  Wall. 
756;  Pollard  v.  Coclie,  19  Ala.  188;  Merchants'  Baaik 
V.  Evans,  51  Mo.  335.)     If  a  State  law  requires  an  ap- 
praisal and  sale  at  a  certain  price,  a  marshal's  sale 
must    conform    to  such    law.     (Smith    v.  Oockrill,  6 
Wall.  756.)     All  the  requisites  under  the  State  law 
must   be  observed.     (Byers    v.  Fowler,  12    Ark.  218; 
Pollard  V.   Ooeke,   19  Ala.  188;  Merchants'   Bank  v. 
Evans,  51  Mo.  335.)     Process    substantially  in    com- 
pliance with  State  laws  will  not  be  set  aside.     (John- 
eon  V.  Healy,  9  Ben.  318;  Fed.  Cas.  No.  7389.)     Prop- 
erty under  the  State  law  subject  to  a  levy  may  be 
taken  on  process  issued    out  of    the    Federal  court. 
(Georgia    v.  Atlantic  &  G.  R.  R.  C».,  3    Woods,  434; 
Fed.  Cas.  No.  5351.)    Property  exempt  from  execution 
under  the  State  laws  is  exempt  under  execution  is- 
sued out  of  a  federal  court.     (In  re  Ruth,  1  Bank, 
Reg.  154;  Fed.  Cas.  No.  12172.)    A    levy    cannot    be 
made  on    an    insolvent    administrator.     (Williams  v. 
Benedict,  8  How.   107.)    A  creditor  cannot  sell  the 
property  after  appointment    of  a    receiver  without 
leave  of  the    State   court.     (Wiswall  v.  Sampson,  14 
How.  52.)     So  execution  cannot  be  issued  to  affect 
property  of  a  corporation  in  the  hands  of  a  receiver. 
(Levi  V.  Columbia  F.  Ins.  Co.,  1  Fed.  Rep.  206;  1  Mc- 
Crary,  34.)     Property  vested  in  a  syndicate  in  insol- 
vency proceedings  cannot    be  levied    on    by  procees 
from  the  Federal    court.     (Bank    v.  Horn,  17    How. 
160.)     Property  exclusively  under  control  of  the  pro- 
bate court  is  not  subject  to  execution  on  a  judgment 
against  an  administrator  in  the  circuit  court     (Yon- 
ley  V.  Lavender,  21  Wall.  276;  Kittredge  v.  Race,  92 
U.  S.  116.)     A  return  of  properly  taken  on  a  fi.  fa.  ou 
execution  of  a  forthcoming  bond  is  governed  by  the 


1121  PROCEDURE.  §  436 

state  law.  (Amis  v.  Smith.  16  Peters,  303.)  State 
laws  regulating  final  process  have  no  application  un- 
less adopted  by  some  act  of  Congress.  (Wayman  v. 
Southard,  10  Wheat.  1;  Ross  v.  Duval,  13  Peters,  45; 
Boyle  V.  Zacharie,  6  Peters,  648.)  So  property  levied 
on  cannot  be  proceeded  against  according  to  the  law 
of  a  State.  (Hall  v.  Yahoola  R.  M.  Oo.,  1  Woods,  544; 
Fed.  Cas.  No.  5955.)  Goods  delivered  to  defendant 
on  a  forthcoming  bond  in  replevin  cannot  be  taken 
in  replevin  from  federal  courts.  (U.  S.  v.  Dantzler, 
3  AVoods,  719;  Fed.  Cas.  No.  14917.)  The  principle  of 
this  section  is  applicable  only  where  there  is  no  rule 
on  the  same  subject  prescribed  by  act  of  Congress, 
and  where  the  State  rule  is  not  in  conflict  with  any 
such  law.  (Ex  parte  Fisk,  113  U.  S.  713;  and  see 
Bond  V.  Dustin,  112  U.  S.  604.)  The  section  does  not 
apply  to  the  form  of  verdicts,  or  to  the  manner  of 
giving  instructions  in  the  federal  coui-ts  (Abbott  v. 
Curtis  etc.  Manuf.  Co.,  25  Fed.  Rep.  402);  nor  does  it 
apply  to  remedies  upon  judgments,  those  remedies  be- 
ing governed  by  the  provisions  of  section  916  (La- 
master  V.  Keeler.  123  U.  S.  376);  nor  do  its  provisions 
adopt  the  State  law  allowing  equitable  defenses  in  a 
legal  action.  (Herklotz  v.  Chase,  32  Fed.  Rep.  433.) 
This  section  applies  to  the  mode  of  service  of  process 
on  corporations  as  well  as  on  persons.  It  is  a  part  of 
the  practice  and  mode  of  proceeding  in  a  suit.  (Amy 
V.  Watertown.  130  U.  S.  301.)  Where  a  particular 
method  of  serving  process  is  pointed  out  by  statute, 
that  method  must  be  followed,  and  the  rule  is  espe- 
cially exacting  in  reference  to  coi"poratlons.  (Kibbe 
V.  Benson,  17  Wall.  624;  Alexandria  v.  Fairfax,  95 
U.  S.  774;  Settlemier  v.  Sullivan,  97  U.  S.  444;  Evans 
V.  Dublin  &  D.  R.  Co.,  14  Mees.  &  W.  142;  Walton  v. 
Universal  Salv.  Co..  16  Mees.  &  W.  4.3S;  United  Asso- 
ciated Press  V.  Times  Printing  Co.,  83  Fed.  Rep.  822.) 


§  436a  PBOCEDUBE.  1122 

§  436  a.  Procedure  in  partition  suits  where 
United  States  is  a  party. — That  when  such  suit 
[for  partition  of  land]  is  brought  by  any  person 
owTiing  an  undivided  interest  in  such  land,  other 
than  the  United  States,  against  the  United  States 
alone,  or  against  the  United  States  and  any 
other  of  such  owners,  service  shall  be  made  on 
the  United  States  by  causing  a  copy  of  the  bill 
filed  to  be  served  upon  the  district  attorney  of 
the  district  wherein  the  suit  is  brought,  and  by 
mailing  a  copy  of  the  same  by  registered  letter  to 
the  attorney-general  of  the  United  States;  and 
the  complainant  "in  such  bill  shall  file  with  the 
clerk  of  the  court  in  which  such  bill  is  filed  an 
affidavit  of  such  service  and  of  the  mailing  of  such 
letter.  It  shall  be  the  duty  of  the  district  attor- 
ney upon  whom  service  of  the  bill  is  made  as  afore- 
said, to  appear  and  defend  the  interests  of  the 
Government,  and  within  sixty  days  after  service 
upon  him  as  hereinabove  prescribed,  unless  the 
time  shall  be  enlarged  by  order  of  the  court  made 
in  the  case,  to  file  a  plea,  answer,  or  demurrer  on 
the  part  of  the  Government,  and  the  cause  shall 
proceed  as  other  cases  for  partition  by  courts  of 
equity,  and  in  making  such  partition  the  court 
shall  be  governed  by  the  same  principles  of  equity 
that  control  courts  of  equity  in  partition  proceed- 
ings between  private  persons.  Whenever  in  such 
suit  the  court  shall  order  a  sale  of  the  property 
or  any  part  thereof,  the  attorney-general  of  the 
United  States  may,  in  his  discretion,  bid  for  the 
same  in  behalf  of  the  United  States.  If  the  United 
States  shall  be  the  purchaser,  the  amount   of  the 


1123  PROCEDURE.  §437 

purchase  money  shall  he  paid  from  the  treasury 
of  the  United  States  upon  a  warrant  drawn  by 
the  secretary  of  the  treasury  on  the  requisition  of 
the  attorney-general.    (30  U.  S.  Stats.  416,  sec.  2.) 

§  437.  Attachments. — In  common-law  causes 
in  the  circuit  and  district  courts  the  plaintiff  shall 
be  entitled  to  similar  remedies,  by  attachment  or 
other  process,  against  the  property  of  the  defend- 
ant, which  are  now  provided  by  the  laws  of  the 
state  in  which  such  court  is  held  for  the  courts 
thereof;  and  such  circuit  or  district  courts  may, 
from  time  to  time,  by  general  rules,  adopt  such 
state  laws  as  may  be  in  force  in  the  states  where 
they  are  held  in  relation  to  attachments  and  other 
process;  provided,  that  similar  preliminary  affida- 
vits or  proofs,  and  similar  security,  as  required  by 
such  State  laws,  shall  be  first  furnished  by  the 
party  seeking  such  attachment  or  other  remedy. 
(Rev.  Stats,  sec.  915.) 

Attachments.— The  rule  adopting  the  State  laws  re- 
lating to  attachments  need  not  be  promulg'ated  in 
writing;  it  will  be  presumed  in  the  appellate  court,  in 
the  absence  of  a  contrary  sliowing,  that  such  a  rule 
has  been  adopted  by  the  trial  court.  (Citizen's  Bank 
V.  Farwell,  12  U.  S.  App.  409;  56  Fed.  Rep.  570.)  A 
Federal  court  cannot  issue  a  writ  of  attachment  be- 
fore final  judgment  against  a  national  bank,  its  juris- 
diction in  this  regard  being  limited  by  all  the  restric- 
tions imposed  by  statute  (U.  S.  Rev.  Stats.,  sec.  5242) 
upon  State  courts.  (Butler  v.  Coleman,  124  U.  S. 
721;  Gamer  v.  Second  Nat.  Bank,  66  Fed.  Rep.  369; 
but  see  Hower  v.  Weiss  M.  &  E.  Co.,  14  TJ.  S.  App. 
210;  55  Fed.  Rep.  356.)    If  the  circuit  or  district  court 


§  437  PROCEDUHH.  1124 

err  in  granting  the  relief  provided  for  in  the  above 
section,  it  is  simply  a  matter  of  eiTor  and  not  one  of 
jurisdiction.  (Schunk  v.  Moline  M.  &  S.  Co.,  147  U. 
S.  500.)  This  section  applies  only  when  process  in 
personam  has  been  served  on  the  defendant  (Chitten- 
den V.  Dai-den,  2  Woods,  437;  Fed.  Cas.  No.  2688), 
when  the  auxiliary  remedy  by  attachment  is  given 
(Nazro  v.  Cragin,  3  Dill.  474;  Fed.  Cas.  No.  10062); 
and  although  a  resident  of  the  district,  defendant 
cannot  be  proceeded  against  by  attachment  unless 
served  with  process  in  the  disti-ict  (Sadlier  v.  Fallon, 
2  Curt.  579;  Fed.  Oas.  No.  12210),  as  no  wi'it  of  attach- 
ment can  be  sei-ved  on  the  property  of  a  nonresident 
until  found  within  the  district  and  served  with  pro- 
cess in  personam'  (Chittenden  v.  Darden.  2  Woods, 
437;  Fed.  Cas.  No.  2688);  but  if  there  are  two  districts 
within  the  State,  a  judgment  creditor  of  one  district 
may  have  an  attachment  in  execution  on  his  judg- 
ment. (Prevost  V.  Gon-ell,  5  Weeli.  Notes,  151;  Fed. 
Cas.  No.  11400.)  A  court  commissioner  has  no  power 
to  issue  the  writ.  (Cliittenden  v.  Darden,  2  Woods, 
437;  Fed.  Cas.  No.  2688.)  The  exercise  of  the  juris- 
diction confen-ed  upon  the  circuit  courts  by  this  sec- 
tion necessarily  draws  to  itself  everything  properly 
incidental,  even  though  it  may  bring  into  the  court, 
for  the  adjudication  of  tlieir  rights,  parties  not  other' 
Avise  subject  to  its  jurisdiction.  (Gumbel  v.  Pitliin, 
124  U.  S.  131.)  A  State  court  has  no  jurisdiction  of 
an  action  of  replevin  to  recover  property  attached  un- 
der the  authority  of  a  Federal  court.  (Krippondorf 
v.  Hyde.  110  U.  S.  270.  And  see  Covell  v.  Hoyman, 
111  U.  S.  176;  Tua  v.  Canriere,  117  U.  S.  201;  Becliettv. 
Sheriff  Hartford  County,  21  Fed.  Kep.  32.)  Where  a 
writ  of  attachment  is  sued  out  in  a  suit,  but  no  prop- 
erty is  levied  on,  the  suit  stands  as  if  it  had  been  insti- 
tuted by  suinuKms  alone.  (New  York,  Lalie  Erie  &  W. 
Ky.  Co.  V.  Kstill,  147  U.  S.  591.)     When  by  State  laws 


1125  PROCEDURE.  §438 

attachments  and  executions  may  be  levied  on  equita- 
ble interests  in  real  estate,  a  bill  in  aid  of  an  execu- 
tion or  attachment  may  be  entertained  in  the  Federal 
courts  of  equity  sitting  in  that  State.  (Lant  v.  Man- 
ley,  43  U.  S.  App.  623;  75  Fed.  Rep.  627.)  The  above 
section  does  not  confer  on  the  United  States  courts 
jurisdiction  of  suits  by  foreign  attachment,  or  juris- 
diction over  a  nonresident  not  sei^ved  with  process, 
though  State  courts  have  such  jurisdiction  under 
State  laws.  (Central  Trust  Co.  v.  Chattanooga  R.  & 
C.  R.  Co.,  68  Fed.  Rep.  685.) 

§•  438.     Execution  in  common-law  causes. — The 

party  recovering  a  judgment  in  any  common-law 
cause  in  any  circuit  or  district  court  shall  be  en- 
titled to  similar  remedies  upon  the  same,  by  ex- 
ecution or  otherwise,  to  reach  the  property  of  the 
judgment  debtor,  as  are  now  provided  in  like 
causes  by  the  laws  of  the  state  in  which  such  court 
is  held,  or  by  any  such  laws  hereafter  enacted 
which  may  be  adopted  by  general  rules  of  such 
circuit  or  district  court;  and  such  courts  may,  irom 
time  to  time,  by  general  rules,  adopt  such  state 
laws  as  may  hereafter  be  in  force  in  such  state  in 
relation  to  remedies  upon  judgments,  as  aforesaid, 
by  execution  or  otherwise.     (Rev.  Stats,  sec.  916.) 

Eemedies  and  rules  to  govern. — Under  this  section 
the  construction  placed  upon  the  State  laws  by  the 
highest  court  of  the  State,  while  not  binding  on  the 
Federal  courts,  is  entitled  to  great  weight.  (Sowles 
V.  Witters,  55  Fed.  Rep.  159.)  Federal  courts  may 
adopt  rules  to  regulate  proceedings  so  as  to  conform 
to  those  of  the  State  (Beers  v.  Haughton,  9  Peters, 
329:  Ross  V.  Duval,  13  Peters,  45);  but  a  rule  made 
by  a  district  judge  will  not  be  considered  binding  un- 


§  438  PEOCEDUBE.  1125 

less  he  be  qualified  to  exercise  the  powers  of  a  circuit 
judge.  (Amis  v.  Smith,  10  Peters,  303.)  They  may- 
adopt  the  State  law  as  a  whole,  but  not  in  part.  (Mc- 
Craclven  v.  Hayward,  2  How.  608.)  The  power  so  to^ 
adopt  the  State  law  extends  to  future  as  well  as  past 
legislation,  and  to  modes  of  procedure  as  well  as 
forms  of  process.  (Ross  v.  Duval,  13  Peters,  45.)  The 
process  on  judgment  is  similar  to  that  allowed  in 
State  courts.  (U.  S.  v.  Humphreys,  3  Hughes,  201; 
Fed.  Cas.  No.  15422.)  So  a  judgment  creditor  may 
have  the  same  remedy  against  a  municipal  corpora- 
tion as  the  State  law  allows  against  a  private  person. 
(New  Orleans  v.  Morris,  3  Woods,  115;  Fed.  Cas.  No. 
10183.)  So  if  the  State  law  allows  an  attachment  on 
the  judgment,  the  same  remedy  is  available  in  the 
Federal  courts  (Pearce  v.  Winter  Iron  Works,  32  Ala. 
(J8);  but  State  niles  relating  to  attachment  of  mort- 
gaged property  do  not  apply  to  an  attachment  issued 
on  a  judgment  unless  adopted.  (Howe  v.  Freeman, 
14  Gray,  5G6.)  The  Congress  adopted  both  the  form 
and  effect  of  executions  as  established  by  State  laws. 
(Koning  v.  Bayard,  2  Paine,  251;  Fed.  Cas.  No.  7924; 
see  Bank  v.  Halstead,  10  Wheat.  51;  U.  S.  v.  Graves, 
2  Brock.  379;  Fed.  Cas.  No.  15250.)  So  execution  can- 
not be  levied  on  property  if  the  State  law  prohibits 
it.  (Williams  v.  Benedict,  8  How.  107.)  If  the  State- 
law  provides  that  a  sale  on  execution  discharges  all 
liens,  the  purchaser  under  an  execution  issued  by  a 
Federal  court  obtains  a  good  title.  (Brown  v.  Ba- 
con, 27  Miss.  589.)  A  sale  under  a  junior  judgment 
in  the  State  court  will  not  prevent  a  sale  under  a  prior 
judgment  of  a  Federal  court.  (Andrews  v.  Wilkes, 
G  How.  (Miss.)  554.)  The  State  court  will,  on  sale  un- 
der a  prior  judgment,  order  the  surplus  to  be  paid  to 
the  marshal.  (C^DUghlan  v.  White,  6()  N.  C.  102.  See 
Bonaftee  v.  Fisk,  13  Smedes  &  M.  082.)  In  garnish- 
ment proceedings,  seie  CaJial  &  C.  Sts.  R.  IL  Go.  v. 


1127  PROCEDURE.  §  438 

Hart,  114  TJ.  S.  654.    In  proceedings  supplementary  to 
execution,  see  Ex  parte  Boyd,  105  U.  S.  647. 

Lien  of  judgment  of  Federal  court.— The  lien  of 
judgments  on  property  within  the  jurisdiction  de- 
pends upon  the  State  law  where  Congress  has  not  pre- 
scribed a  different  rule  (Williams  v.  Benedict,  8  How. 
107);  the  proceedings  in  the  Federal  courts  are  gov- 
erned solely  by  acts  of  Congress  (CorAvin  v.  Benham, 
2  Ohio  St.  36);  and  judgments  of  Federal  courts  have 
the  same  lien  that  judgments  in  the  State  court  have. 
(Williams  v.  Benedict,  8  How.  107;  Ward  v.  Cham- 
berlain, 2  Blacli.  430;  Carroll  v.  Watkins,  1  Abb.  U.  S. 
474;  Fed.  Cas.  No.  2457;  Koning  v.  Bayard  2  Paine, 
251;  Fed.  Cas.  No.  7924;  Pollard  v.  Cocke,  19  Ala.  188; 
Trapnall  v.  Richardson,  13  Arlv.  543;  Byers  v.  Fowler, 
12  Ark.  218;  U.  S.  v.  Duncan,  12  111.  523;  Simpson  v. 
Niles,  1  Ind.  196;  Sellers  v.  Corwin,  5  Ohio,  398;  Law- 
rence v.  Belger,  31  Ohio  St.  175.)  Where  tJie  State 
law  creates  a  lien  only  in  the  county  where  judgment 
is  entered,  the  lien  in  the  federal  court  is,  notwith- 
standing, to  the  extent  of  its  territorial  jurisdiction 
in  the  district  (Massingill  v.  Downs,  7  How.  760; 
Shrew  v.  Jones,  2  McLean,  78;  Fed.  Cas.  No.  12818; 
see  Lombard  v.  Bayard,  1  Wall.  Jr.  196;  Fed.  Cas. 
No.  8469);  so  if  there  is  more  than  one  district  in  the 
State,  when  process  can  be  issued  throughout  the 
State  (Manhattan  Oo.  v.  Evertson,  6  Paige,  457),  and 
it  is  not  necessary  that  a  copy  be  filed  with  the  clerk 
of  any  county  of  the  State.  (Cropsey  v.  CrandaU,  2 
Blatchf.  341;  Fed.  Oas.  No.  3418;  Shrew  v.  Jones,  2 
McLean,  78;  Fed.  Cas.  No.  12818;  U.  S.  v.  Scott,  3 
Woods,  334;  Fed.  Cas.  No.  16242;  but  see  Tarpley  v. 
Hamer,  9  Smedes  &  M.  310;  Reid  v.  House,  2  Humph. 
570.)  The  lien  arises  from  the  fact  that  its  effect,  and 
that  of  i>i*ocess  thereon,  are  the  same  as  judgments  of 
the  State  court.     (U.  S.  v.  Morrison,  4  Pet.  124;  Barth 


§438a  PKOCEDUBE,  1128 

V.  Makeever,  4  Biss.  206;  Fed.  Cas.  No.  1069;  U.  S.  v. 
Humphreys,  3  Huglies,  201;  Fed.  Oas.  No.  15422; 
Shew  V.  Jones,  2  McLean,  78;  Fed.  Cas.  No.  12818; 
Lombard  v.  Bayard,  1  Wall.  Jr.  196;  Fed.  Gas.  No. 
8469.)  A  levy  and  sale  of  lands  under  a  pluries  exe- 
cution while  a  prior  levy  remains  undisposed  of  is  a 
mere  iiTcgularity  which  can  onlj'  be  taken  advantage 
of  in  apt  time.  (Kerr  v.  South  Park  Commrs.,  8  Biss. 
276;  Fed.  Cas.  No.  7733.)  A  suit  in  rem  for  forfeiture 
of  property  by  reason  of  violation  of  the  internal  rev- 
enue law  is  a  "common-law  cause"  within  the  mean- 
ing of  this  section.  (A  Quant,  of  Manuf.  Tobacco,  10 
Ben.  447;  Fed.  Gas.  No.  11499.  See  act  of  August  1, 
1888.) 

§  438  a.  Procedure  upon  award  in  controver- 
sies between  carriers  and  their  employees. — That 
the  award  and  the  papers  and  proceedings,  includ- 
ing the  testimony  relating  thereto,  certified  under 
the  hands  of  the  arbitrators  and  which  shall  have 
the  force  and  effect  of  a  bill  of  exceptions,  shall 
be  filed  in  the  clerk's  office  of  the  circuit  court 
of  the  United  States  for  the  district  wherein  the 
controversy  arises  or  the  arbitration  is  entered 
into,  and  shall  be  final  and  conclusive  upon  both 
parties,  unless  set  aside  for  error  of  law  apparent 
on  the  record. 

That  the  award  being  filed  in  the  clerk's  office 
of  a  circuit  court  of  the  United  States,  as  herein- 
before provided,  shall  go  into  practical  operation, 
and  judgment  shall  be  entered  thereon  accordingly 
at  the  expiration  of  ten  days  from  such  filing,  un- 
less within  such  ten  days  either  party  shall  file 
exceptions  thereto  for  matter  of  law  apparent  upon 


1129  PEOCEDTJKE.  §439 

the  record,  in  whieli  case  said  award  shall  go  into 
practical  operation  and  judgment  be  entered  ac- 
cordingly when  such  exceptions  shall  have  been 
finally  disposed  of  either  by  said  circuit  court  or 
on  appeal  therefrom. 

At  the  expiration  of  ten  days  from  the  decision 
of  the  circuit  court  upon  exceptions  taken  to  said 
award,  as  aforesaid,  judgment  shall  be  entered  in 
accordance  with  said  decision  unless  during  said 
ten  days  either  party  shall  appeal  therefrom  to  the 
circuit  court  of  appeals.  In  such  case  only  such 
portion  of  the  record  shall  be  transmitted  to  the 
appellate  court  as  is  necessary  to  the  proper  under- 
standing and  consideration  of  the  questions  of  law 
presented  by  said  exceptions  and  to  be  decided. 

The  determination  of  said  circuit  court  of  ap- 
peals upon  said  questions  shall  be  final,  and  being 
certified  by  the  clerk  thereof  to  said  circuit  court, 
judgment  pursuant  thereto  shall  thereupon  be  en- 
tered by  said  circuit  court. 

If  exceptions  to  an  award  are  finally  sustained, 
judgment  shall  be  entered  setting  aside  the  award. 
But  in  such  case  the  parties  may  agree  upon  a 
judgment  to  be  entered  disposing  of  the  subject 
matter  of  the  controversy,  which  judgment  when 
entered  shall  have  the  same  force  and  effect  as 
judgment  entered  upon  an  award.  (30  U.  S. 
Stats.,  425,  426.) 

§  439.  Supreme  court  to  regulate  the  practice 
of  circuit  and  district  courts. — The  supreme  court 
shall  have  power  to  prescribe,  from  time  to  time. 

Fed.  Proc— 95. 


§439  PROCEDTJEE.  1130 

and  in  any  manner  not  inconsistent  with  any  law 
of  the  United  States,  the  forms  of  writs  and  other 
process,  the  modes  of  framing  and  filing  proceed- 
ings and  pleadings,  of  taking  and  obtaining  evi- 
dence, of  obtaining  discovery,  of  proceeding  to  ob- 
tain relief,  of  drawing  up,  entering,  and  enrolling 
decrees,  and  of  proceeding  before  trustees  appoint- 
ed by  the  court,  and  generally  to  regulate  the 
whole  practice,  to  be  used,  in  suits  in  equity  or 
admiralty,  by  the  circuit  and  district  courts. 
(Rev.  Stats,  sec.  917.) 

The  power  conferred  is  not  only  to  make  rules,  but 
to  make  them  from  time  to  time.  (The  St.  Lawrence, 
1  Blaclv,  522.)  The  supreme  court  may  make  rules 
to  regulate  mere  matters  of  practice  in  equity  (Pier- 
pout  V.  Fowie,  2  Wood.  &  M.  23;  Fed.  Cas.  No.  11152), 
as  by  allowing  defendant  to  plead  to  part  of  a  bill, 
and  demur  to  a  part.  (Pieiiiont  v.  Fowle,  2  Wood.  & 
M.  23;  Fed.  Cas.  No.  11152.)  Such  rules  are  obligatory 
on  the  circuit  court  (Poultney  v.  La  Fayette,  12 
Pet.  472;  Ex  parte  Whitney,  13  Pet.  404);  and  no 
practice  in  the  circuit  court  inconsistent  therewith  is 
admissible  to  control  them  (Bank  v.  White,  8  Pet  2G2); 
but  rules  prescribed  by  the  supreme  court  do  not  ex- 
clude other  rules  aud  usages  of  the  circuit  courts  (Van 
Hook  v.  Pendleton,  2  Blatchf.  85;  Fed.  Cas.  No.  1G852), 
as  enlarging  the  time  of  appearing,  and  answering 
when  justice  requires  it  (Poultney  v.  La  Fayette,  12 
Pet.  472);  but  the  circuit  courts  have  no  power  to 
make  rules  inconsistent  with  the  rules  presci'ibed  by 
the  supreme  court  (Story  v.  Livingston,  13  Pet.  359; 
Gaines  v.  Relf,  15  Pet.  9;  Bedn  v.  Heath,  12  How.  168; 
Jenkins  v.  Greenwald,  1  Bond,  126;  Fed.  Cas.  No. 
7270),  as  a  rule  adopting  a  State  law  as  to  the  rights 
and  obligations  of  parties  to  injunction  bonds.    (Biea 


1131  PROCEDURE.  §  440 

T.  Heath,  12  How.  168.)  Rules  prescribed  by  the  su- 
preme court  have  the  force  and  effect  of  statutoi*y  pro- 
Ylslons,  (The  Delaware,  Olcott,  240;  Fed.Cas.  No.  3762; 
Scott  V.  The  Young  America,  Newb.  Adm.  107;  Fed. 
Gas.  No.  12550;  Hussel  v.  The  Asa  R.  Swift,  Newb. 
Adm.  553;  Fed.  Cas.  No.  12144;  Gaines  v.  Travis,  Abb. 
Adm.  422;  Fed.  Gas.  No.  5180;  The  Illinois,  1  Brown 
Adm.  13;  Fed.  Gas.  No.  7003),  but  it  can  make  no  rule 
to  conflict  with  an  act  of  Congress  (Gray  v.  G.  I.  &  N. 
R.  R.  Go.,  1  Wool.  63;  Fed.  Gas.  No.  5713),  as  a  rule 
making  judgments  or  decrees  for  money  a  lien,  on 
land,  or  to  displace  any  land  where  the  same  is  con- 
ferred by  law.  (Ward  v.  Ghamberlain,  2  Black,  430.) 
Although  it  cannot  by  rule  affect  the  jurisdiction  con- 
ferred by  law,  yet  it  may  regulate  proceedings  and 
process.     (The  St.  Lawrence,  1  Black,  522.) 

§  440.  Practice  in  the  several  courts  to  be  reg- 
ulated by  their  own  rules. — The  several  circuit 
and  district  courts  may,  from  time  to  time,  and 
in  any  manner  not  inconsistent  with  any  law  of 
the  United  States,  or  with  any  rule  prescribed  by 
the  supreme  court  under  the  preceding  section, 
make  rules  and  orders  directing  the  returning  of 
writs  and  processes,  the  filing  of  pleadings,  the 
taking  of  rules,  the  entering  and  making  up  of 
judgments  by  default,  and  other  matters  in  vaca- 
tion, and  otherwise  regulate  their  own  practice  as 
may  be  necessary  or  convenient  for  the  advance- 
ment of  Justice  and  the  prevention  of  delays  in 
proceedings.     (Eev.  Stats,   sec.  918.) 

Rules.— Under  this  section  Federal  courts  may  by 
rule  require  parties  to  print  their  briefs  (Neff  v. 
Pennioyer,  3  Saw.  .335;  Fed.  Gas.  No.  10084);  or  may 
pass  a  rule  for  making  up  the  tx'ial  docket,  and  make 


§  440  PBOCEDURE,  1132 

the  clerk's  fee  part  of  taxable  costs  (The  Alice 
Tamtor,  14  Blatehf.  225;  Fed.  Cas.  No.  196);  or  a  rule 
which  dispenses  with  proof  of  execution  of  a  bond, 
bill,  or  note,  unless  defendant  flies  an  affidavit  deny- 
ing the  execution  (Mills  v.  Banli,  11  Wheat.  431);  or 
it  may  adopt  the  form  of  a  bill  of  exceptions  as 
known  at  common  law  (Pomeroy  v.  State  Bank,  1 
Wall.  592);  but  no  rule  can  exclude  competent  evi- 
dence. (Patterson  v.  Winn,  5  Pet.  233.)  Federal 
courts  may  regulate  their  own  process,  and  prescribe 
rules  for  the  collection  and  disposition  of  moneys,  and 
compel  their  observance  by  attachment.  (The  Lau- 
rens, 1  Abb.  Adm.  508;  Fed.  Cas.  No.  8122.)  And 
with  consent  of  parties  a  cause  may,  under  a  rule,  be 
referred  to  a  referee  to  hear  and  report  his  determin- 
ation to  the  court.  (Thornton  v.  Carson,  7  Cranch, 
596;Alexandria  Canal  Co.  v.  Swarm,  5  How.  83;  Heck- 
ers  V.  Fowler,  2  Wall.  123.)  A  court  may  suspend 
its  rules  or  except  a  case  from  their  opei-ation.  (U.  S. 
V.  Breitling,  20  How.  252;  Russell  v.  McLellan,  3 
Wood.  &  M.  157;  Fed.  Cas.  No.  12158;  Wallace  v. 
Clark,  3  Wood.  &  M.  359;  Fed.  Cas.  No.  17098.)  It  is 
not  essential  that  it  adopt  wiltten  rules;  it  may  be 
established  by  uniform  practice  of  a  series  of  years. 
(FuUerton  v.  Bank,  1  Pet.  604;  Duncan  v.  U.  S.,  7 
Pet.  435;  U.  S.  v.  Stevenson.  1  Abb.  U.  S.  495;  Fed. 
Cas.  No.  16P.95;  Koning  v.  Bayard,  2  Paine,  251;  Fed. 
Cas.  No.  7924;  Sellers  v.  Corwin,  5  Ohio,  398.)  And 
a  decision  on  a  subject  establishes  the  practice. 
(Duncan  v.  U.  S.,  7  Pet.  435.)  Section  914,  adopting 
the  practice  of  the  several  States,  should  be  construed 
in  connection  with  this  section.  (Osborne  v.  City  of 
Detroit,  28  Fed.  Rep.  385.)  The  power  given  to  the 
Federal  courts  to  prescribe  rules  does  not  authorize 
a  district  court  to  prescribe  that  among  admiralty 
claims  of  equal  dignity,  the  first  libeling  shall  be  paid 
first.  (Saylor  v.  Taylor,  42  U.  S.  App.  206;  77  Fed. 
Rep.  476.) 


1 


1133  PEOCEDUBE.  §§  441-443 

§  441.  Suits  for  duties,  etc. — All  suits  for  the 
recovery  of  any  duties,  imposts,  or  taxes,  or  for 
the  enforcement  of  any  penalty  or  forfeiture  pro- 
vided by  any  act  respecting  imports  or  tonnage, 
or  the  registering  and  recording  or  enrolling  and 
licensing  of  vessels,  or  the  internal  revenue,  or  di- 
rect taxes,  and  all  suits  arising  under  the  postal 
laws,  shall  he  brought  in  the  name  of  the  United 
States.     (Rev.  Stats,    see.  919.) 

§  442.     Consolidation    of    revenue    seizures. — 

Whenever  two  or  more  things  belonging  to  the 
same  person  are  seized  for  an  alleged  violation  of 
the  revenue  laws,  the  whole  must  be  included  in 
one  suit;  and  if  separate  actions  are  prosecuted  in 
such  cases,  the  court  shall  consolidate  them. 
(Rev.  Stats,   sec.  920.) 

§  443.  Orders  to  save  costs ;  consolidation  of 
causes. — When  causes  of  a  like  nature  or  relative 
to  the  same  question  are  pending  before  a  court  of 
the  United  States,  or  of  any  Territory,  the  court 
may  make  such  orders  and  rules  concerning  pro- 
ceedings therein  as  may  be  conformable  to  the 
usages  of  courts  for  avoiding  unnecessary  costs  or 
delay  in  the  administration  of  justice,  and  may 
consolidate  said  causes  when  it  appears  reasonable 
to  do  so.     (Rev.  Stats,  sec.  921.) 

Consolidation  to  save  costs.— If  a  party  has  two  or 
more  causes  of  action  of  the  same  kind  he  mav  be 
compelled  to  consolidate  and  pay  the  costs  of  the  ap- 
plication. (Bank  v.  Young,  1  Cranch  C.  C.  458;  Fed. 
Cas.  No.  857;  Wolverton  v.  Lacey,  18  Law  Rep.  672; 


§§444-445  PKOCEDURE.  1134 

Fed.  Cas.  No.  179:^2.)  The  practice  to  consolidate  un- 
der tills  section  is  a  common  practice.  (U.  S.  v.  U. 
Pac.  R.  R.  Co.,  98  U.  S.  569.)  If  several  suits  involve 
the  same  questions,  and  tlie  attorneys  for  defendants 
co'usent  that  judgment  may  abide  the  event  of  a  trial 
of  one  case,  an  order  may  be  entered  that  the  decree 
entered  in  the  case  selected  for  trial  shall  be  entered 
in  the  other  cases.  (Andi-ews  v.  Spear,  4  Dill.  472; 
Fed.  Cas.  No.  380.)  So  the  court  may  ordir  several  ac- 
tions against  several  insurance  companies  to  be  tried 
before  the  same  jury  if  the  questions  and  the  evidence 
are  the  same  and  the  counsel  the  same.  (Weide  v. 
Insurance  Co.,  1  Dill.  441;  Fed.  Cas.  No.  17858.)  Un- 
der the  above  section  it  is  proper  to  consolidate  an 
equity  suit  brought  in  aid  of  an  attachment,  and  one 
to  restrain  the  enforcement  of  such  attachment  by  ex- 
ecution, and  to  make  the  bill  in  the  latter  a  cix)ss-bill 
in  the  former.  (Lant  v.  Kinne,  43  U.  S.  App.  640;  75 
Fed.  Rep,  (>36.) 

§  444.  When  the  marshal  is  a  party. — When 
the  marshal  or  his  deputy  is  a  party  in  any  cause, 
the  writs  and  precepta  therein  shall  be  directed  to 
such  disinterested  person  as  the  court  or  any  Jus- 
tice or  judge  thereof  may  appoint,  and  the  person 
so  appointed  may  execute  and  return  them.  (Rev. 
Stats,  sec.  922.) 

A  deputy  marshal  cannot  plead  in  abatement  that 
the  writ  was  not  directed  to  and  served  by  a  disinter- 
ested person.     (Knox  v.  Summers,  3  Oranch,  496.) 

§  445.     Seizures  for  forfeiture  in  certain  cases. 

— When  any  vessel,  goods,  wares,  or  merchandise 
are  seized  by  any  officer  of  the  customs,  and  prose- 
cuted for  forfeiture  by  virtue  of  any  law  respect- 


1135  PROCEDURE.  §  445a 

ing  the  revenue^  or  the  registering  and  recording, 
or  the  enrolling  and  licensing  of  vessels,  the  court 
shall  cause  fourteen  days'  notice  to  be  given  of 
such  seizure  and  libel,  by  causing  the  substance 
of  such  libel,  with  the  order  of  the  court  thereon, 
setting  forth  the  time  and  place  appointed  for 
trial,  to  be  inserted  in  some  newspaper  published 
near  the  place  of  seizure,  and  by  posting  up  the 
same  in  the  most  public  manner  for  the  space  of 
fourteen  days,  at  or  near  the  place  of  trial;  and 
proclamation  shall  be  made  in  such  manner  as  the 
court  shall  direct.  And  if  no  person  appears  and 
claims  such  vessel,  goods,  wares,  or  merchandise, 
and  gives  bond  to  defend  the  prosecution  thereof, 
and  to  respond  the  cost  in  case  he  shall  not  sup- 
port his  claim,  the  court  shall  proceed  to  hear  and 
determine  the  cause  according  to  law.  (Eev.  Stats, 
sec.  923.) 

§  445  a.  Proceedings  to  restrain  combinations 
in  violation  of  import  trade. — That  the  several  cir- 
cuit courts  of  the  United  States  are  hereby  in- 
vested with  jurisdiction  to  prevent  and  restrain 
violations  of  section  seventy-three  of  this  act  [de- 
claring void  agreements  in  restraint  of  import 
trade],  and  it  shall  be  the  duty  of  the  several  dis- 
trict attorneys  of  the  United  States,  in  their  re- 
spective districts,  under  the  direction  of  the  At- 
torney-General, to  institute  proceedings  in  equity 
to  prevent  and  restrain  such  violations.  Such 
proceedings  may  be  by  way  of  petitions  setting 
forth  the  case  and  praying  that  such  violations 
shall  be  enjoined  or  otherwise  prohibited.     When 


§  446  PROCEDUKE.  1136 

the  parties  complained  of  shall  have  been  duly  no- 
tified of  such  petition  the  court  shall  proceed,  as 
soon  as  may  be,  to  the  hearing  and  determination 
of  the  case;  and  pending  such  petition  and  before 
final  decree,  the  court  may  at  any  time  make  such 
temporary  restraining  order  or  prohibition  as  shall 
be  deemed  just  in  the  premises.  (28  U.  S.  Stats, 
570.) 

§  446.  Attachment  in  postal  suits.— In  all 
cases  where  debts  are  due  from  defaulting  or  de- 
linquent postmasters,  contractors,  or  other  officers, 
agents,  or  employees  of  the  post-office  department, 
a  warrant  of  attachment  may  issue  against  all  real 
and  personal  property  and  legal  and  equitable 
rights  belonging  to  such  officer,  agent,  or  em- 
ployee, and  his  sureties,  or  either  of  them,  in  the 
following  cases: 

First.  When  such  officer,  agent,  or  employee, 
and  his  sureties,  or  either  of  them,  is  a  nonresi- 
dent of  the  district  where  such  officer,  agent,  or 
employee  was  appointed,  or  has  departed  from  such 
district  for  the  purpose  of  permanently  residing 
out  of  the  same,  or  of  defrauding  the  United 
States,  or  of  avoiding  the  service  of  civil  process. 

Second.  When  such  officer,  agent,  or  employee, 
and  his  sureties,  or  either  of  them,  has  conveyed 
away,  or  is  about  to  convey  away,  his  property,  or 
any  part  thereof,  or  has  removed,  or  is  about  to 
remove,  the  same,  or  any  part  thereof,  from  the 
district  wherein  it  is  situate,  with  intent  to  de- 
fraud the  United  States. 


1137  PEOCEDUEE.  §§  447-448 

And  when  any  snch  property  has  been  removed, 
certified  copies  of  the  warrant  may  be  sent  to  the 
marshal  of  the  district  into  which  the  same  has 
been  removed,  under  which  certified  copies  he  may 
seize  said  property  and  convey  it  to  some  conven- 
ient point  within  the  jurisdiction  of  the  court  from 
which  the  warrant  originally  issued.  And  alias 
warrants  may  be  issued  in  such  cases  upon  due 
application,  and  the  validity  of  the  warrant  first  is- 
sued shall  continue  until  the  return  day  thereof. 
(Bev.  Stats,  sec.  924.) 

§  447.  Application  for  warrant — Postal  suit. 
— Application  for  such  warrant  of  attachment  may 
be  made  by  any  district  or  assistant  district  attor- 
ney, or  by  any  other  person  authorized  by  the  post- 
master-general, before  the  judge,  or,  in  his  ab- 
sence, before  the  clerk  of  any  court  of  the  United 
States  having  original  jurisdiction  of  the  cause  of 
action.  And  such  application  shall  be  made  upon 
an  affidavit  of  the  applicant,  or  of  some  other  cred- 
ible person,  stating  the  existence  of  either  of  the 
grounds  of  attachment  enumerated  in  the  preced- 
ing section,  and  upon  production  of  legal  evidence 
of  the  debt.     (Eev.  Stats,  sec.  925.) 

§  448.  Issuing  warrant  in  postal  suit — Duty 
of  clerk  and  marshal. — Upon  any  such  applica- 
tion, and  upon  due  order  of  any  judge  of  the  court, 
or,  in  his  absence,  without  such  order,  the  clerk 
shall  issue  a  warrant  for  the  attachment  of  all  the 
property  of  any  kind  belonging  to  the  person  speci- 
fied in  the  affidavit,  which  warrant  shall  be  exe- 


§§  449-450  PKOCEDUKE.  1138 

cuted  with  all  possible  dispatch  by  the  marshal, 
who  shall  take  the  property  attached,  if  personal, 
into  his  custody,  and  hold  the  same  subject  to  all 
interlocutory  or  final  orders  of  the  court.  (Eev. 
Stats,   sec.  926.) 

§  449.     Ownership  of  attached  property — Trial. 

— At  any  time  within  twenty  days  before  the  re- 
turn day  of  such  wan-ant,  the  party  whose  prop- 
erty is  attached  may,  on  giving  notice  to  the  dis- 
trict attorney  of  his  intention,  file  a  plea  in  abate- 
ment, traversing  the  allegations  of  the  affidavit, 
or  denying  the  ownership  of  the  property  attached 
to  be  in  the  defendants  or  either  of  them;  in  which 
case  the  court  may,  upon  application  of  either 
party,  order  an  immediate  trial  by  jury  of  the 
issues  raised  by  the  affidavit  and  plea;  but  the  par- 
ties may,  by  consent,  waive  a  trial  by  jury,  in 
which  case  the  court  shall  decide  the  issues  raised. 
And  any  party  claiming  ownership  of  the  property 
attached,  and  a  specific  return  thereof,  shall  be 
confined  to  the  remedy  herein  afforded;  but  his 
right  to  an  action  of  trespass,  or  other  action  for 
damages,  shall  not  be  impaired  hereby.  (Rev. 
Stats,   sec.  937.) 

§  450.  Proceeds  of  attached  property. — When 
the  property  attached  is  sold  on  any  interlocutory 
order  of  the  court  or  is  producing  any  revenue,  the 
money  arising  from  such  sale  or  revenue  shall  be 
invested  in  securities  of  the  United  States,  under 
the  order  of  the  court,  and  all  accretions  shall  be 


1139  PROCEDUEE.  §§451-453 

held  subject  to  the  orders  of  the  same.     (Eev. 
Stats,    sec.  928.) 

§  451.  Publication  of  attachment. — Immedi- 
ately upon  the  execution  of  any  such  warrant  of 
attachment,  the  marshal  shall  cause  due  publica- 
tion thereof  to  be  made,  in  the  case  of  absconding 
debtors  for  two  months,  and  of  nonresidents  for 
four  months.  The  publication  shall  be  made  in 
some  newspaper  published  in  the  district  where  the 
property  is  situate,  and  the  details  thereof  shall 
be  regulated  by  the  order  under  which  the  war- 
rant is  issued.     (Rev.  Stats,    sec.  929.) 

§  452.  Property  of  defendants — Accounting, 
etc. — After  the  first  publication  of  such  notice  of 
attachment  as  required  by  law,  every  person  in- 
debted to,  or  having  possessionof  any  property  be- 
longing to,  the  said  defendants,  or  either  of  them, 
and  having  knowledge  of  such  notice,  shall  ac- 
count and  answer  for  the  amount  of  such  debt  and 
the  value  of  such  property;  and  any  disposal  or  at- 
tempt to  dispose  of  any  such  property,  to  the  in- 
jury of  the  United  States,  shall  be  illegal  and  void. 
And  when  the  person  indebted  to,  or  having  pos- 
session of  the  property  of,  such  defendants,  or 
either  of  them,  is  known  to  the  district  attorney 
or  marshal,  such  officer  shall  see  that  personal  no- 
tice of  the  attachment  is  served  upon  such  person, 
but  the  want  of  such  notice  shall  not  invalidate 
the  attachment.    (Rev.  Stats,   sec.  930.) 

§•453.  Discharge  of  attachment — Bond. — TTp- 
■on  application  of  the  party  whose  property  has 


§§  454-455  PKOCEDURE.  1140 

been  attached,  the  court,  or  any  judge  thereof,  may 
discharge  the  warrant  of  attachment  as  to  the 
property  of  the  applicant,  provided  such  applicant 
shall  execute  to  the  United  States  a  good  and  suf- 
ficient penal  bond,  in  double  the  value  of  the  prop- 
erty attached,  to  be  approved  by  a  Judge  of  the 
court,  and  with  condition  for  the  return  of  said 
property  or  to  answer  any  judgment  which  may 
be  rendered  by  the  court  in  the  premises.  (Kev. 
Stats,  sec.  931.) 

§  454.     Accrued  rights  not  to  be  abridged. — 

Nothing  contained  in  the  preceding  eight  sections 
shall  be  construed  to  limit  or  abridge,  in  any  man- 
ner, such  rights  of  the  United  States  as  have  ac- 
crued or  been  allowed  in  any  district  under  the 
former  practice  of,  or  the  adoption  of  State  laws 
by,  the  United  States  courts.  (Rev.  Stats,  sec. 
932.) 

§  455.  Attachments  dissolved  in  conformity 
with  State  lav^s. — An  attachment  of  property, 
upon  process  instituted  in  any  court  in  the  United 
States,  to  satisfy  such  judgment  as  may  be  re- 
covered by  the  plaintiff  therein,  except  in  the  cases 
mentioned  in  the  preceding  nine  sections,  shall  be 
dissolved  when  any  contingency  occurs  by  which, 
according  to  the  laws  of  the  State  where  said  court 
is  held,  such  attachment  would  be  dissolved  upon 
like  process  instituted  in  the  courts  of  said  State; 
provided,  that  nothing  herein  contained  shall  inter- 
fere with  any  priority  of  the  United  States  in  the 
payment  of  debts.    (Rev.  Stats,  sec.  933.) 


1141  PKOCEDUKK.  §§  456-457 

Dissolution  of  attachments. — A  motion  to  dis- 
charge an  attachment  should  be  supported  by  an  affi- 
davit traversing  the  facts  set  out  in  the  affidavit  of 
plaintiff,  upon  which  the  attachment  was  issued. 
(Jenks  V.  Richardson,  71  Fed.  Rep.  3G5.)  On  a  mo- 
tion to  dissolve  an  attachment  the  sufficiency  of  the 
petition  as  showing  a  cause  of  action  on  the  part  of 
plaintiffs,  cannot  be  considered.  (Jenks  v.  Richard- 
son, 71  P'ed.  Rep.  365.)  Under  this  section  an  attach- 
ment is  dissolved  in  Louisiana  by  an  accepted  ces- 
sion of  the  attached  property  to  creditors  under  the 
Insolvency  laws  of  that  State.  (Schwartz  v.  Claflin, 
13  U.  S.  App.  707;  60  Fed.  Rep.  676.) 

§  456.  Property  taken  under  revenue  laws  ir- 
repleviable.— All  property  taken  or  detained  by 
any  officer  or  other  persons,  under  authority  of 
any  revenue  law  of  the  United  States,  shall  be  ir- 
repleviable, and  shall  be  deemed  to  be  in  the  cus- 
tody of  the  law,  and  subject  only  to  the  orders  and 
decrees  of  the  courts  of  the  United  States  having 
jurisdiction  thereof.    (Rev.  Stats,  sec.  934.) 

Note. — Property  levied  on  by  a  collector  of  inter- 
nal revenue.  (O'Reilly  v.  Good,  42  Barb.  521;  Brice 
V.  Elliott,  22  Int.  Rev.  Rec.  206;  Fed.  Gas.  No.  18^.) 

§  457.  Garnishees  in  suits  by  the  United  States 
on  notes,  etc. — In  any  suit  by  the  United  States 
against  a  corporation  for  the  recovery  of  money 
upon  a  bill,  note,  or  other  security,  the  debtors  of 
the  corporation  may  be  summoned  as  garnishees; 
and  it  shall  be  the  duty  of  any  person  so  sum- 
moned to  appear  in  open  court  and  to  depose,  in 
writing,  to  the  amount  which  he  was  indebted  to 
the  said  corporation  at  the  time  of  the  service  of 

Fed.  Proc— 96. 


§§  458-460  PBOCEDTJRE.  1142 

the  summons  and  at  the  time  of  making  such  de- 
position; and  judgment  may  be  entered  in  favor  of 
the  United  States  for  the  sum  admitted  by  such 
garnishee  to  be  due  to  the  said  corporation,  in  the 
same  manner  as  if  it  had  been  due  to  the  United 
States;  provided,  that  no  judgment  shall  be  en- 
tered against  any  garnishee  until  after  Judgment 
has  been  rendered  against  the  corporation  defend- 
ant to  the  said  action,  or  until  the  sum  in  which 
the  garnishee  stands  indebted  is  actually  due. 
(Eev.  Stats,   sec.  935.) 

§  458.  Issue  tendered  when  garnishee  denies 
indebtedness. — When  any  person  summoned  as 
garnishee  deposes  in  open  court  that  he  is  not,  and 
was  not  at  the  time  of  the  service  of  the  summons, 
indebted  to  such  corporation,  an  issue  may  be  ten- 
dered by  the  United  States  upon  such  demand, 
and  if,  upon  the  trial  of  that  issue,  a  verdict  is  ren- 
dered against  the  garnishee,  judgment  shall  be  en- 
tered in  favor  of  the  United  States,  pursuant  to 
such  verdict,  with  costs  of  suit.  (ilev.  Stats,  sec. 
936.) 

§  459.     Garnishee    failing    to  appear. — If  any 

person  summoned  as  garnishee,  as  aforesaid,  fails 
to  appear  at  the  term  of  tlie  court  to  which  he  is 
summoned,  he  shall  be  subject  to  attachment  for 
contempt  of  the  court.    (Rev.  Stats,  sec.  937.) 

§  460.  Bailing  of  property  seized  under  cus- 
toms laws. — Upon  the  prayer  of  any  claimant  to 
the  court  that  any  vessel,  goods,  wares,  or  mer- 


1143  PKOCEDUEE.  §460 

chandise,  seized  and  prosecuted  imder  any  law  re- 
specting the  revenue  from  imports  or  tonnage,  or 
tlie  registering  and  recording,  or  the  enrolling  and 
licensing  of  vessels,  or  any  part  thereof,  should  be 
delivered  to  him,  the  court  shall  appoint  three 
proper  persons  to  appraise  such  property,  who 
shall  be  sworn  in  open  court,  or  before  a  commis- 
sioner appointed  by  the  district  court  to  administer 
oaths  to  appraisers  for  the  faithful  discharge  of 
their  duty;  and  the  appraisement  shall  be  made  at 
the  expense  of  the  party  on  whose  prayer  it  is 
granted.  If,  on  the  return  of  the  appraisement, 
the  claimant,  with  one  or  more  sureties,  to  be  ap- 
proved by  the  court,  shall  execute  a  bond  to  the 
United  States  for  the  payment  of  a  sum  equal  to 
the  sum  at  which  the  property  prayed  to  be  deliv- 
ered is  appraised,  and  produce  a  certificate  from 
the  collector  of  the  district  where  the  trial  is  had, 
and  of  the  naval  officer  thereof,  if  any  there  be, 
that  the  duties  on  the  goods,  wares,  and  merchan- 
dise, or  tonnage  duty  on  the  vessel  so  claimed, 
have  been  paid  or  secured  in  like  manner  as  if  the 
same  had  been  legally  entered,  the  court  shall,  by 
rule,  order  such  vessel,  goods,  wares,  or  merchan- 
dise to  be  delivered  to  such  claimant;  and  the  said 
bond  shall  be  lodged  with  the  proper  officer  of  the 
court.  If  judgment  passes  in  favor  of  the  claim- 
ant, the  court  shall  cause  the  said  bond  to  be  can- 
celed; but  if  judgment  passes  against  the  claimant, 
as  to  the  whole  or  any  part  of  such  vessel,  goods, 
wares  or  merchandise,  and  the  claimant  does  not, 
within  twenty  days  thereafter,  pay  into  the  court, 


§  460  PEOCEDTJRE.  1144 

or  to  the  proper  officer  thereof,  the  amount  of  the 
appraised  value  of  such  vessel,  goods,  wares,  or 
merchandise  so  condemned,  with  the  costs,  Judg- 
ment shall  be  granted  upon  the  bond,  on  motion  in 
open  court,  without  further  delay.  [See  sec.  570.] 
(Eev.  Stats,  sec.  938.) 

Security,  how  taken.— The  security  may  be  taken 
by  a  sealed  instrument  or  by  a  stipulation  in  the  na- 
ture of  a  recognizance  (The  Alligator,  1  Gall.  145; 
Fed.  Cas.  No.  248;  McLellan  v.  U.  S.,  1  Gall.  227;  Fed. 
Cas.  No.  8895;  The  Octavia,  1  Mason,  149;  Fed.  Cas. 
No.  10423);  but  the  best  course  is  to  take  a  stipula- 
tion. (The  Alligator,  1  Gall.  145;  Fed.  Oas.  No.  248.) 
The  stipulation  is  deemed  a  mere  substitute  for  the 
thing  itself,  and  the  stipulators  are  liable  to  the  exer- 
cise of  all  those  powers  on  the  part  of  the  court  which 
it  could  properly  exercise  if  the  thing  itself  were  still 
in  its  custody.  (The  Palmyi-a,  12  Wheat.  1;  Newell 
V.  Norton,  3  Wall.  257.)  The  exercise  of  authority  on 
the  part  of  court,  where  the  sureties  will  be  affected 
injuriously,  is  in  the  discretion  of  the  court.  (The 
Palmyra,  12  Wheat  1.)  Even  without  any  statute 
the  admiralty  may  take  a  stipulation  (The  Alligator, 
1  Gall.  145;  Fed.  Cas.  No.  248;  McLellan  v.  U.  S.,  1 
Gall.  227;  Fed.  Cas.  No.  8895;  Place  v.  Norwich,  1  Ben. 
89;  Fed.  Cas.  No.  11202;  U.  S.  v.  Four  Pieces,  1  Paine, 
435;  Fed.  Cas.  No.  15150);  and  a  void  bond  may  be 
good  as  a  stipulation.  (The  Alligator,  1  Gall.  145; 
Fed.  Cas.  No.  248.)  The  government  has  a  right  to  be 
heard  as  to  the  propriety  of  a  delivery  on  bail,  and  no 
delivery  ought  to  be  made  until  all  objections  have 
been  heard  and  considered  (Ex  parte  Robbins,  2  Gall. 
320;  Fed.  Cas.  No.  11879);  and  the  court  may  refuse  to 
deliver  on  a  stipulation  unless  upon  condition  that  it 
carry  interest.  (The  Santa  Maria.  10  Wheat.  431.) 
Where  a  vessel  libeled  for  violation  of  the  revenue 


1145  PKOCEDURE.  §461 

laws  is  released  upon  a  bond  of  doubtful  validity  tlio 
United  States  cannot  maintain  a  second  libel  for  other 
violations  of  the  revenue  laws,  committed  dux'ing  the 
same  period  for  which  the  first  libel  was  filed,  with-' 
out  dismissing  the  first  proceeding.  (The  Haytian 
Republic,  57  Fed.  Rep.  508.)  A  release  bond  which 
contains  no  condition,  and  which  is  for  double  the 
value  of  the  vessel,  is  valid  as  an  obligation  to  pay 
at  least  the  value  of  the  vessel.  (The  Haytian  Re- 
public, 57  Fed.  Rep.  508.) 

Procedure  on  stipulation. — The  court  rany  require 
full  proof  of  the  allegations  in  the  libel  (United  States 
V.  The  liion,  1  Sprague,  399;  Fed.  Cas.  No.  15607);  but 
if  there  is  no  claim  no  proof  oif  the  facts  is  required. 
(United  States  v.  The  Lion,  1  Sprague,  399;  Fed. 
Cas.  No.  15607;  The  MaiT  Anne,  1  Ware,  104;  Fed. 
Cas.  No.  9195.)  If  the  stipulation  is  joint  and  sev- 
eral, libelants  may  take  separate  judgments  and 
executions  against  the  surviving  parties  on  the  bond 
or  pi-oceed  against  the  representatives.  (The  Oc- 
tavia,  1  Mason,  149;  Fed.  Cas.  No.  10423.)  Judg- 
ment on  the  bond  ought  to  be  in  open  court  after 
the  lapse  of  twenty  days,  and  not  before.  (JNIcLellan 
V.  U.  S.,  1  Gall.  227:  Fed.  Cas.  No.  8895.)  Judgment 
and  execution  may  be  awai'ded  in  a  summary  manner 
on  a  stipulation.  (The  Gran  Para,  10  Wheat.  497; 
The  Alligator,  1  Gall.  145;  Fed.  Cas.  No.  248;  Tho  BnT- 
tic,  Blatchf.  &  H.  149;  Fed.  Cas.  No.  826.)  The  ulti- 
mate adjudication  of  the  cause  is  not  compieie  ml 
judgment  is  awarded  on  the  bond.  (McLellan  v.  U. 
S.,  1  Gall.  1;  Fed.  Cas.  No.  15165.) 

§  461.  Sale  after  condemnation. — All  vessels, 
goods,  wares,  or  merchandise  wliicli  shall  be  con- 
demned by  virtue  of  any  law  respecting  the  reve- 
nue from  imports  or  tonnage,  or  the  registering 


^  462  PEOCEDUEE.  1146 

and  recording,  or  the  enrolling  and  licensing  of 
vessels,  and  for  which,  bonds  shall  not  have  been 
given  by  the  claimant,  shall  be  sold  by  the  marshal 
or  other  proper  officer  of  the  court  in  which  con- 
demnation shall  be  had,  to  the  highest  bidder,  at 
public  auction,  by  order  of  such  court,  and  at  such 
place  as  the  court  may  appoint,  giving  at  least  fif- 
teen days'  notice  (except  in  cases  of  perishable 
merchandise)  in  one  or  more  of  the  public  news- 
papers of  the  place  where  such  sale  shall  be;  or  if 
no  paper  is  published  in  such  place,  in  one  or  more 
of  the  papers  published  in  the  nearest  place  there- 
to; for  which  advertising  a  sum  not  exceeding  five 
dollars  shall  be  paid.  And  the  amount  of  such 
sales,  deducting  all  proper  charges,  shall  be  paid 
within  ten  days  after  such  sale  by  the  person  sell- 
ing the  same,  to  the  clerk  or  other  proper  officer 
of  the  court  directing  such  sale,  to  be  by  him,  after 
deducting  the  charges  allowed  by  the  court,  paid 
to  the  collector  of  the  district  in  which  such  seiz- 
ure or  forfeiture  has  taken  place,  as  hereinbefore 
directed.    (Eev.  Stats,  sec.  939.) 

§  462.  In  cases  of  seizure,  bailing  of  property 
in  vacation. — In  any  cause  of  admiralty  and  mari- 
time jurisdiction,  or  other  case  of  seizure,  depend- 
ing in  any  court  of  the  United  States,  any  judge  of 
the  said  court,  in  vacation,  shall  have  the  same 
authority  to  order  any  vessel  or  cargo  or  other 
property  to  be  delivered  to  the  claimants,  upon  bail 
or  bond,  or  to  be  sold  when  necessary,  as  the  said 
court  has  in  term-time,  and  to  appoint  appraisers, 
and  exercise  every  other  incidental  power  neces- 


1147  PKOCEDURE  §  463 

sary  to  the  complete  execution  of  the  authority 
herein  granted;  and  the  recognizance  of  bail  or 
bond,  under  such  order,  may  be  executed  before 
the  clerk  upon  the  party's  producing  the  certificate 
of  the  collector  of  the  district,  of  the  sufficiency 
of  the  security  offered;  and  the  same  proceedings 
shall  be  had  in  case  of  said  order  of  delivery  or  of 
sale  as  are  had  in  like  cases  when  ordered  in  term- 
time;  provided,  that  upon  every  such  application, 
either  for  an  order  of  delivery  or  of  sale,  the  collec- 
tor and  the  attorney  of  the  district  shall  have  rea- 
sonable notice  in  cases  of  the  United  States,  and 
the  party  or  counsel  in  all  other  cases.  (Rev. 
Stats,  sec.  940.) 

§  463.  Delivery  bond  in  admiralty  proceed- 
ings.— When  a  warrant  of  arrest  or  other  pro- 
cess in  rem  is  issued  in  any  cause  of  admiralty 
jurisdiction,  except  in  cases  of  seizures  for  for- 
feiture under  any  law  of  the  United  States,  the 
marshal  shall  stay  the  execution  of  such  process, 
or  discharge  the  property  arrested  if  the  process 
has  been  levied,  on  receiving  from  the  claimant  of 
the  property  a  bond  or  stipulation  in  double  the 
amount  claimed  by  the  libelant,  with  sufficient 
surety,  to  be  approved  by  the  judge  of  the  court 
where  the  cause  is  pending,  or,  in  his  absence,  by 
the  collector  of  the  port,  conditioned  to  answer  the 
decree  of  the  court  in  such  cause.  Such  bond  or 
stipulation  shall  be  returned  to  the  court,  and 
judgment  thereon,  against  both  the  principal  and 
sureties,  may  be  recovered  at  the  time  of  rendering 
the  decree  in  the  original  cause.  And  the  owner 
of  any  vessel  may  cause  to  be  executed  and  de- 


§  463  PKOCEDITRE.  1148 

livered  to  the  marshal  a  bond  or  stipulation,  with 
sufficient  surety,  to  be  approved  by  the  jtidge  of  the 
court  in  which  he  is  marshal,  conditioned  to  answer 
the  decree  of  said  court  in  all  or  any  cases  that 
shall  thereafter  be  ba-'ought  in  said  court  against 
the  said  vessel,  and  thereupon  the  execution  of  all 
such  process  against  said  vessel  shall  be  stayed  so 
long  as  the  amount  secured  by  said  bond  or  stipula- 
tion shall  be  at  least  double  the  aggregate  amount 
claimed  by  the  libelants  in  such  suits  which  shall 
be  begun  and  pending  against  said  vessel;  and  like 
judgments  and  remedies  may  be  had  on  said, bond 
OT  stipulation  as  'if  a  special  bond  or  stipulation 
had  been  filed  in  each  of  said  suits.  The  court 
may  make  such  orders  as  may  be  necessary  to 
carry  this  section  into  effect,  and  especially  for  the 
giving  of  proper  notice  of  any  such  suit.  Such 
bond  or  stipulation  shall  be  indorsed  by  the  clerk 
with  a  minute  of  tbe  suits  wherein  process  is  so 
stayed,  and  further  security  may  at  any  time  be  re- 
quired by  tbe  court.  If  a  special  bond  or  stipula- 
tion in  the  particular  cause  shall  be  given  under 
this  section,  the  liability  as  to  said  cause  on  the 
general  bond  or  stipulation  shall  coase.  [Eev. 
Stats.  §  941,  as  amended  March  3.  1899,  30  U.  S. 
Stats.] 

Release  of  vessel. — Retumo'dtoowm'.r  (TheOld  Con- 
cord. 1  Brown.  270;  Fed  Oas.  No.  10-182;  The  TTnion, 
4  lilalchf.  IM);  Fed.  Ca.s.  No.  14341;).  dischni'Sed  of 
lien  for  which  seized  fTlie  Mutual,  7S  Fed.  Rep.  144), 
but  subject  to  all  previous  liens,  and  subseqiieii'l  ac- 
eruin.cr  lions  (The  linioii.  4  Hlalchf.  !)0;  Fefl.  Cas. 
No.  14346).    Coui-t  will  not  order  redelivery  of  vessel 


1149  PKOCEDUEE.  §463 

to  marshal  (The  Uniion,  4  Blatchf.  90;  Fed.  Cas. 
No.  14346).  And  she  cannot  again  be  taken  for 
the  same  cause  of  .  action  (The  Mutual,  78  Fed. 
Rep.  144).  The  libelants  cannot  participate  in  the 
proceeds  of  the  sale  undeT  a  subsequ.ent  libel  in  ab- 
sence of  fraud.  (The  Madge,  31  Fed.  Rep.  926);  The 
Belgenland,  108  U.  S.  157).  A  vessel  libeled  for  for- 
feiture for  violation  of  neutrality  laws  may  in  the 
court's  discretion  be  released  on  bond  (The  Three 
Friends,  78  Fed.  Rep.  173).  The  right  of  a 
vessel  owner  to  give  bond  and  retain  posses- 
sion extends  under  the  above  section  to  possess- 
ory action.s  as  well  as  others;  and  if  he  fails  to 
exercise  the  right  he  cannot  require  the  libelant  to 
give  security  for  damages  caused  by  seizure.  (The 
Poconoket,  61  Red.  Rep.  106.)  A  bond  in  the  general 
form  of  a  common-law  bond  given  to  secure  the  re- 
lease of  a  vessel,  and  approved  by  the  judge  and  filed 
with  the  clerk  is  within  the  requirements  of  the  above 
section,  even  if  given  before  the  vessel  is  actually 
arrested,  process  having  been  issued  to  the  marshal 
for  that  purpose;  and  a  decree  and  execution  thereon 
may  be  awarded  against  the  siirety  without  a  sep- 
arate suit.  (Munks  v.  Jackson,  29  U.  S.  App.  482;  66 
Fed.  Rep.  571.)  A  release  bond  for  a  vessel  seized  for 
violation  of  the  revenue  laws,  which  contains  no  con- 
dition and  which  is  for  double  the  value  of  the  vessel 
as  if  drawn  under  §  941,  Rev.  Stats.,  is  valid  under 
Rev.  Stats.,  §  938,  as  an  obligation  to  pay  at  least 
the  value  of  the  vessel.  (The  Haytian  Republic,  57 
Fed.  Rep.  508.)  A  vessel  released  on  bond,  it  having 
been  seized  under  a  libel  of  forfeiture  for  violation  of 
the  revenue  laAvs.  is  not  subiect  to  seizure  in  a  differ- 
ent district,  under  a  libel  alleging  other  violations 
committed  during  the  same  period.  (The  Havtian  Re- 
public, 15  U.  S,  App.  288;  59  Fed.  Rep.  476.) 

§  464.  Special  bail  in  suits  for  duties  and  pen- 
alties.— In  all  suits  or  prosecutions  for  the  recov- 
ery of  duties  or  pecuniary  penalties  prescribed  by 
the  laws  of  the  United  States,  commenced  in  any 
state  where,  by  the  laws  thereof,  imprisonment  for 


§  465  PKOCEDUKE.  1150 

debt  shall  not  have  been  abolished,  the  person 
against  whom  process  is  issued  shall  be  held  to 
special  bail,  subject  to  the  rules  which  prevail  in 
civil  suits  in  which  special  lail  is  required.  (Rev. 
Stats,  sec.  912.) 

Note. — The  marshal  may  detain  the  defendant  until 
bail  is  given,  and  for  that  purpose  may  commit  him 
to  prison.  (Palmer  v.  Allen,  7  Cranch,  550;  U.  S.  v. 
Mundell,  1  Hughes,  415;  Fed.  Cas.  No.  15834.)  Bail 
cannot  be  required  unless  the  affidavit  shows  prob- 
able cause  where  the  State  law  so  requires.  (Leonard 
V.  Casli^in,  Bee,  14G;  Fed,  Cas.  No.  8257.) 

§  465.  Defendant  giving  bail  in  one  district 
committed  in  another. — When  a  defendant  who 
has  procured  bail  to  respond  to  the  judgment  in  a 
suit  in  any  court  of  the  United  States  in  any  dis- 
trict is  afterward  arrested  in  any  other  district,  and 
is  committed  to  a  jail,  the  use  of  which  had  been 
ceded  to  the  United  States  for  the  custody  of 
prisoners,  the  judge  of  the  court  wherein  the  suit 
in  which  the  defendant  has  so  procured  bail  is  de- 
pending shall,  at  the  request  of  the  bail,  order  that 
such  defendant  be  held  in  said  jail,  in  the  custody 
of  the  marshal  of  the  district  in  which  it  is.  The 
said  marshal,  upon  the  delivery  of  such  order, 
duly  authenticated,  shall  receive  such  person  into 
his  custody,  and  thereupon  be  chargeable  for  an 
escape,  and  shall  forthwith  make  a  certificate, 
under  his  hand  and  seal,  of  such  commitment,  and 
transmit  the  same  to  the  court  from  which  the 
order  issued,  and,  if  required,  shall  make  and  de- 
liver to  such  bail,  or  to  his  attorney,  a  duplicate 


1151  PROCEDURE.  §§466-468 

thereof.  Upon  the  return  of  such  certificate,  the 
court  which  made  the  said  order  or  any  judge 
thereof,  may  direct  that  an  exoneretur  be  entered 
upon  the  bail  piece,  where  special  bail  shnll  have 
been  found,  or  otherwise  discharge  such  bail,  (lie v. 
Stats,   sec.  943.) 

§  466.  Allowing  prisoners  to  escape. — When- 
ever any  marshal,  deputy  marshal,  ministerial  of- 
ficer, or  other  person,  has  in  his  custody  any  prison- 
er by  virtue  of  process  issued  under  the  laws  of  the 
United  States  by  any  court,  judge,  or  commis- 
sioner, and  such  marshal,  deputy  marshal,  minis- 
terial officer,  or  other  person,  voluntarily  sufl'ers 
such  prisoner  to  escape,  he  shall  be  fined  not  more 
than  two  thousand  dollars,  or  imprisoned  for  a 
term  not  more  than  two  years,  or  both.  (Eev. 
Stats,  sec.  5409.) 

§  467.     Application  of  preceding  section. — The 

preceding  section  shall  be  construed  to  apply  not 
only  to  cases  in  which  the  prisoner  who  escaped 
was  charged  or  found  guilty  of  an  offense  against 
the  laws  of  the  United  States,  but  also  to  cases  in 
which  a  prisoner  may  be  in  custody  charged  with 
offenses  against  any  foreign  government  with 
which  the  United  States  have  treaties  of  extradi- 
tion.   (Rev.  Stats,   sec.  5410.) 

§  468.  Defendant  held  until  judgment. — When 
a  defendant  is  committed  by  virtue  of  the  order 
provided  in  the  preceding  section,  he  shall,  unless 
sooner  discharged  by  law,  be  holden  in  jail  until 


§§  469-470  PEOCEDUKE.  1152 

final  judgment  is  rendered  in  the  suit  in  which  he 
procured  bail  as  aforesaid,  and  sixty  days  tliere- 
after,  if  such  judgment  is  rendered  against  him,  in 
order  that  he  may  be  charged  in  execution,  which 
may,  in  such  cases,  be  directed  to  and  served  by  the 
marshal  in  whose  custody  he  is.  (Eev.  Stata  sec. 
944.) 

§  469.  Bail  and  affidavits  taken  by  commis- 
sioners.— Bail  and  affidavits,  when  required  or  al- 
lowed in  any  civil  cause  in  any  circuit  or  district 
court,  may  be  taken  by  a  commissioner  of  the  cir- 
cuit court  for  the  district;  and  such  acknowledg- 
ments of  bail  and  affidavits  shall  have  the  same  ef- 
fect as  if  taken  before  any  judge  of  such  courts. 
(Eev.  Stats,  sec.  945.) 

A  commissioner  may  take  affidavits  in  civil  pro- 
ceedings for  arrest  in  conformity  with  State  laws 
(Fulton  V.  Gilmore,  10  Chic.  L.  N.  108;  Fed.  Cas.  No. 
5154);  but  a  commissioner  in  one  circuit  caxmot 
authenticate  a  stipulation  to  talie  effect  in  another 
circuit.  (Sawyer  v.  Oaliman,  11  Blatchf.  65;  Fed. 
Cas.  No.  12403.)  In  the  absence  of  a  rule  of  court 
providing  otherwise,  appeal  bonds  may  be  taken  be- 
fore a  United  States  commissioner.  (The  Canary,  No. 
2,  22  Fed.  Kep.  536.) 

§  470.     Calling  of  bail,  in  Kentucky. — When  a 

bail  bond  is  given  for  the  appearance  of  any  person, 
to  answer  in  the  district  or  circuit  court  for  the  dis- 
trict of  Kentucky,  the  clerk  of  such  court  shall 
call  the  party  at  the  time  he  is  bound  to  appear. 
If  the  party  fails,  the  clerk  shall  enter  such  failure 
on  his  minutes,  and  on  said  entry  judgment  may 


I 


1153  PEOCEDURE.  §§471-473 

afterward  be  made  of  record  by  the  court;  but  if 
the  party  appears,  the  clerk  shall  take  another 
bond,  with  sureties  similar  to  the  first,  for  further 
appearance  at  the  next  succeeding  term  of  the 
court,  and  if  the  party  fails  to  give  such  other  bond 
and  surety,  he  shall  stand  committed  by  order  of 
the  clerk  until  he  complies.  (Eev.  Stats,  sec.  946.) 

§  471.     When  clerks  may  take  bail  de  bene  esse. 

— Kecognizances  of  special  bail  may  be  taken  de 
lene  esse  by  the  clerks  of  the  circuit  and  district 
courts,  in  the  absence  or  in  case  of  the  disability  of 
the  judges,  in  any  action  depending  in  either  of  the 
said  courts,  where  special  bail  is  demandable.  (Eev. 
Stats,   sec.  947.) 

§  472.  Amendment  of  process. — Any  circuit  or 
district  court  may  at  any  time,  in  its  discretion, 
and  upon  such  terms  as  it  may  deem  just,  allow  an 
amendment  of  any  process  returnable  to  or  before 
it,  where  the  defect  has  not  prejudiced,  and  the 
amendment  will  not  injure,  the  party  against 
whom  such  process  issues.     (Rev.  Stats,   sec.  948.) 

Note.— If  a  summons  did  not  issue  from  the  court, 
it  cannot  be  amended.  (Dwi^ht  v.  Merritt.  4  F<hL  T'ep. 
614;  18  Blatchf.  305.)  The  circuit  court  may  allow 
amendment  of  a  writ  of  error  which  is  made  return- 
able on  the  wrong  day.  (Semmes  v.  U.  S.,  91  U. 
S.  21.) 

§  473.  Priority  of  State  cases. — When  a  State 
is  a  party,  or  the  execution  of  the  revenue  laws  of 
a  State  is  enjoined  or  stayed,  in  any  suit  in  a  court 
of  the  United  States,  such  State,  or  the  party  claim- 

Ked.  Proc— 97. 


§§  474-475  PEOCEDURB,  1154 

ing  under  the  revenue  laws  of  a  State,  the  execu- 
tion whereof  is  enjoined  or  stayed,  shall  be  entitled, 
on  showing  sufficient  reason,  to  have  the  cause 
heard  at  any  time  after  it  is  docketed,  in  prefer- 
ence to  any  civil  cause  pending  in  such  court  be- 
tween private  parties.     (Rev.  Stats,  sec.  949.) 

Note.— This  statute  is  not  imperative  (Hoge  v.  Rich- 
mond &  D.  R.  R.  Co.,  93  U.  S.  1);  but  a  motion  can. 
not  be  advanced  on  the  calendar,  unless  made  by  a 
state,  or  a  party  claiming  under  the  laws  of  a  State. 
(Ward  v.  Slate,  12  Wall.  1G3.)  A  motion  to  give  pri- 
ority to  a  ease  is  not  granted  as  of  course,  even  with 
the  concurrence  of'  both  parties  (Miller  v.  State,  12 
Wall,  luy;;  it  is  for  the  court  to  determine  what  is 
"sufficient  reason"  for  this  preference  under  all  the 
circumstances  (Hoge  v.  Richmond  &  D.  R.  R.  Co., 
93  U.  S.  1);  and  preference  will  not  be  given  where 
the  execution  of  the  revenue  laws  of  a  State  is  en- 
joined, unless  it  appears  that  the  operations  of  the 
State  government  will  be  embaiTassed.  (Hoge  v. 
Richmond  &  D.  R.  R.  Co.,  93  U.  S.  1.)  A  suit  in  the 
nature  of  a  quo  warranto  to  try  the  title  to  office  in 
a  private  corporation  is  not  entitled  to  priority.  (Mil- 
ler V.  State,  12  Wall.  159.)  So  the  ordinances  of  a 
municipal  corporation  are  not  entitled  to  priority. 
(Davenport  City  v.  Dows,  15  Wall.  390.) 

§  474.     Notice  of  case  for  trial. — In  all  civil  ac- 
tions in  the  coui-ts  of  the    United    States    either 
party  may  notice  the  same  for  trial.    (Rev.  Stats. 
sec.  950.) 

§  475.  Suits  of  United  States  against  indi- 
vidals — Credits. — In  suits  brought  by  the  United 
States  against  individuals,  no  claim  for  a  credit 


1155  TKOCEDUEE.  §  475 

shall  be  admitted,  upon  trial,  except  such  as  ap- 
jjear  to  have  been  presented  to  the  accounting  of- 
ficers of  the  treasury,  for  their  examination,  and 
to  have  been  by  them  disallowed,  in  whole  or  in 
part,  unless  it  is  proved  to  the  satisfaction  of  the 
court  that  the  defendant  is,  at  the  time  of  the  trial, 
in  possession  of  vouchers  not  before  in  his  power  to 
23rocure,  and  that  he  was  prevented  from  exhibit- 
ing a  claim  for  such  credit  at  the  treasury  by  ab- 
sence from  the  United  States,  or  by  some  unavoid- 
able accident.    (Eev.  Stats,  sec.  951.) 

Suits  brought  by  the  United  States.— This  section 
embraces  every  suit  between  the  United  States  and 
an  individual  (U.  S.  v.  Ingersoll,  Crabbe,  135;  Fed. 
Cas.  No.  15440;  U.  S.  v.  Barker,  1  Paine,  156;  Fed. 
Cas.  No.  14517),  and  no  State  law  can  effect  the  ques- 
tion of  set-off  on  such  an  action.  (U.  S.  v.  Robeson, 
9  Peters,  319;  Reeside  v.  Walker,  11  How.  272;  U.  S. 
V.  Eckford,  6  Wall.  484;  W^atkins  v.  U.  S.,  9  Wall. 
759;  U.  S.  V.  Prentice,  6  McLean,  65;  Fed.  Cas.  No. 
16083.)  The  section  applies  to  a  suit  brought  against 
one  who  failed  to  account  for  money  received  during 
the  war  as  acting  regimental  quartermaster  (United 
States  V.  Wade,  75  Fed.  Rep.  261.)  The  object  of  the 
act  is  to  liquidate  and  adjust  all  accounts  between  the 
parties.  (U.  S.  v.  Wilkins,  6  Wheat.  135;  U.  S.  v.  Fille- 
brown,  7  Peters,  28;  Gratiot  v.  U.  S.,  15  Peters,  336; 
U.  S.  V.  Fitzgerald,  4  Cranch  C.  O.  203;  Fed.  Cas. 
No.  15107.)  Judgment  cannot  be  rendered  against  the 
United  States  for  the  excess  of  a  setoff  over  the  claim 
of  the  United  States  (Reeside  v.  Walker,  11  How.  272; 
U.  S.  v.  Eckford,  6  Wall.  484;  Schaumberg  v.  U.  S., 
35  Leg.  Int.  29;  Fed.  Cas.  No.  12442);  or  can  the  as- 
signee of  a  claim  use  it  as  a  set-off,  although  the  State 
law  may  allow  it  as  a  set-off  in  State  courts.  (U.  S. 
V.  Robeson,  9  Peters,  319.)    Evidence  may  be  given  of 


§  475  PEOCEDUBE.  1156 

a  claim  if  it  tias  been  presented  to  the  proper  ac- 
counting officers,  and  by  tliem  disallowed.  (U.  S.  v. 
Ringgold,  8  Peters,  160;  U.  S.  v.  Smith,  1  Bond,  68; 
Fed.  Cas.  No.  1G321;  U.  S.  v.  Corwin,  1  Bond,  149; 
Fed.  Cas.  14870;  United  States  v.  North  American 
Commercial  Co.,  74  Fed.  Rep.  145.)  So  of  the  claim 
of  sujreties  on  an  official  bond.  (United  States  v. 
Giles,  &  Cranch,  212;  but  see  Cox  v.  U.  S.,  6 
Peters,  172.)  So  of  a  claim  of  a  collector  of 
internal  reveciue  which  has  been  rejected.  (U. 
S.  V.  Kimball,  101  U.  S.  72t>.)  So  where  a  claim 
was  rejected  by  the  secretary  of  the  treasury.  (.U.  fcs. 
V.  MacDaniel,  7  Peters,  1.)  This  section  applies  to 
payments  by  sureties  of  a  defaulting  postmaster  on 
account  of  his  liability  made  in  cash,  as  well  as  to 
credits,  when  evidence  of  such  payments  is  sought  to 
be  introduced  by  the  sureties  in  an  action  against 
them  on  the  bond  (Alexander  v.  United  States,  15 
U.  S.  App.  158;  57  Fed.  Rep.  828).  A  defendant  may 
give  evidence  that  money  was  collected  under  a  judg- 
ment without  proof  that  the  claim  has  been  presented 
to  the  proper  officers  and  rejected.  (Meyers  v.  U.  S., 
1  McLean,  493;  Fed.  Cas.  No.  OWS.)  So  a  defendant 
may  claim  credits,  though  not  presented  and  disal- 
lowed until  after  commencement  of  the  suit.  (U.  S. 
V.  Hawkins,  10  Peters,  125.)  Where  a  claim  has  not 
been  presented  and  disallowed,  no  evidence  can  be 
given  concerning  it,  unless  defendant  has  vouchers 
which  he  could  not  procure  before.  (Watkins  v.  U. 
S.,  y  Wall.  759;  Halliburton  v.  U.  S.,  13  Wall.  03;  RaU- 
road  Co.  v.  U.  S.,  101  U.  S.  541;  U.  S.  v.  Austin,  2  ClifC. 
325;  Fed.  Cas.  No.  14480;  U.  S.  v.  Ingersoll,  Crabbe, 
135;  Fed.  Cas.  No.  15440;  U.  S.  v.  Smith,  1  Bond,  68; 
Fed.  Cas.  No.  1U321;  U.  S.  v.  Duval,  Cilp,  350;  Fed. 
Cas.  No.  15015;  U.  S.  v.  Barker,  1  Paine,  150;  Fed. 
Cas.  No.  14517.J  This  section  requires  that  the  claim 
otoly  shall  have  been  presented,  and  not  the  evidence 


1157  PROCEDURE.  §475 

to  support  it  and  hence  such  evidence  will  not  be  ex- 
cluded merely  because  it  was  never  so  presented. 
(United  States  v.  Patrick,  36  U.  S.  App.  645;  73  Fed. 
Rep.  800.)  Proof  of  a  claim  is  not  admissible  until  a 
proper  foundation  is  laid  by  proof  of  its  rejection, 
and  parol  evidence  is  inadmissible  for  that  purpose 
(U.  S.  V.  Gilmore,  7  Wall.  491);  and  in  default  of 
proof  of  rejection  the  claim  should  be  withdrawn 
from  the  consideration  of  the  jury  (U.  S.  v.  Gilmore, 
7  Wall.  491;  U.  S.  v.  Smith,  1  Bond,  68;  Fed.  Gas.  No. 
16321);  but  an  instruction  cannot  be  given  that  de- 
fendant is  not  entitled  to  credits  unless  there  is  no 
eridenx^e  to  support  them.  (U.  S.  v.  Laub,  12  Peters, 
1.)  No  particular  form  of  allowance  or  disallowance 
is  required  (U.  S.  v.  Duval,  Gilp,  356;  Fed.  Gas.  15- 
015);  but  the  suspension  of  a  claim  is  not  a  disallow- 
ance. (U.  S.  V.  Duval,  Gilp.  356;  Fed.  Gas.  No.  15015; 
U.  S.  V.  Cadwalader,  Gilp.  568;  Fed.  Gas.  No.  14- 
706.)  A  suspended  claim  may  be  allowed  by  the  suc- 
cessor in  office.  (U.  S.  v.  Cadwalader,  Gilp.  563;  Fed. 
Gas.  No.  14706.)  The  bringing  of  an  action  for  the 
balance  that  excludes  the  claim  is  a  sufficient  dis- 
allowance. (U.  S.  V.  Duval,  Gilp.  356;  Fed.  Gas.  No. 
15015.)  An  equitable  claim  that  should  have  been 
allowed  by  an  exercise  of  discretionary  power  may 
be  admitted  as  a  set-off.  (U.  S.  v.  MacDaniel,  7 
Peters,  1;  U.  S.  v.  Ripley,  7  Peters,  18;  U.  S.  v.  Duval, 
Gilp.  356;  Fed.  Gas.  No.  1-5015.)  A  credit  or  allowance 
made  by  the  head  of  a  department  cannot  aiterwurd 
be  recalled.  (U.  S.  v.  Bank,  15  Peters,  377;  U.  S.  v. 
Kuhn,  4  Cranch  G.  G.  401;  Fed.  Gas.  No.  15545.)  A 
claim  for  unliquidated  damages  cannot  be  used  as  a 
set-off.  {{].  S.  V.  Robeson,  9  Peters,  319;  U.  S.  v.  Bu- 
chanan, 8  How.  83;  U.  S.  v.  Williams,  5  McLean,  133; 
Fed.  Gas.  No.  16721;  U.  S.  v.  Wells,  2  Wash.  C.  G. 
161;  Fed.  Gas.  No.  16663.)  So  a  claim  for  a  new 
credit  from  another  account  cannot  be  received  unless 


§476  PROCEDURE.  1158 

it  has  been  first  presented  to  the  treasury  department. 
(Cox  V.  U.  S.,  6  Peters.  172.)  So  a  credit  allowed  to  a 
quartermaster  must  first  be  presented  at  the  treasury 
department.  (U.  S.  v.  Lent,  1  Paine,  417;  Fed.  Cas. 
No.  15593.)  A  charge  against  one  claim  on  which 
there  will  be  a  balance  cannot  be  used  as  a  set-off 
against  another  claim.  (U.  S.  v.  Prentice,  6  McLean, 
65;  Fed.  Cas.  No.  1G0S3.)  A  claim  which  requires 
legislative  action  is  not  a  proper  set-off.  (U.  S.  v. 
MacDaniel,  7  Peters,  1;  U.  S.  v.  Buchanan,  8  How. 
S3;  U.  S.  V.  Williams,  5  McLean,  133;  Fed.  Cas.  No. 
16721;  U.  S.  V.  Wells,  2  Wash.  C.  C.  161;  Fed.  Cas. 
No.  16663.)  The  presentation  of  a  claim  against  the 
United  States  to  the  treasury  department  for  ex- 
amination and  allowance  as  required  by  law  bars  the 
running  of  the  statute  of  limitations  during  the  time 
consumed  in  such  investigation.  (Utz  v.  United 
States,  75  Fed.  Rep.  648.) 

§  476.     In  suits  under  postal  laws — Credits. — 

No  claim  for  a  credit  shall  be  allowed  upon  the 
trial  of  any  suit  for  delinquency  against  a  post- 
master, contractor,  or  other  officer,  agent,  or  em- 
ployee of  the  post-office  department,  unless  the 
same  has  been  presented  to  the  sixth  auditor,  and 
by  him  disallowed,  in  whole  or  in  part,  or  unless 
it  is  proved  to  the  satisfaction  of  the  court  that  the 
defendant  is,  at  the  time  of  trial,  in  possession  of 
vouchers  not  before  in  his  power  to  procure,  and 
that  he  was  prevented  from  exhibiting  to  the  said 
auditor  a  claim  for  such  credit  by  some  unavoida- 
ble accident.    (Kev.  Stats,   sec.  952.) 

Note.— If  a  statute  does  not  give  an  allowance  as  a 
matter  of  right,  the  disallowance  of  the  postmaster- 
general  is  conclusive;  but  if  he  is  entitled  to  a  claim 


1159  PROCEDURE.  §§  477-478 

as  a  matter  of  rigbt,  he  may  use  it  as  a  set-off,  al- 
though it  be  disallowed.  (U.  S.  v.  DaVis,  Deady,  294; 
Fed.  Cas.  No.  14927.)  If  a  claim  has  not  been  pre- 
sented to  the  sixth  auditor,  and  by  him  disallowed,  it 
cannot  be  used  as  a  set-off,  unless  the  party  is  in  pos- 
session of  vouchers  which  he  could  not  before  pro- 
cure.   (Ware  v.  U.  S.,  4  Wall.  617.) 

§  477.  Bill  of  exceptions — A  bill  of  exceptions 
allowed  in  any  cause  shall  be  deemed  sufficiently 
authenticated  if  signed  by  the  judge  of  the  court 
in  which  the  cause  was  tried,  or  by  the  presiding 
judge  thereof,  if  more  than  one  judge  sat  on  the 
trial  of  the  cause,  without  any  seal  of  court  or 
judge  being  annexed  thereto.  (Rev.  Stats,  sec. 
953.) 

Note.— If  the  bill  is  signed  by  the  judge  it  is  suf- 
ficient, though  not  sealed.  (Geueres  v.  Campbell,  11 
Wall.  193.)  It  is  conclusive  upon  the  supreme  court 
Avhich  cannot  assume  that  any  material  part  of  the 
evidence  is  omitted.  (Bingham  v.  Cabot,  3  Dall.  19, 
382.)  A  bill  of  exceptions  may  be  signed  after  the 
expiration  of  the  term  at  which  the  judgment  was 
rendered  if  done  by  consent  of  parties  given  during 
that  term,    (Waldron  v.  Waldron,  15G  U.  S.  361.) 

§  478.    Defects  of  form  —  Amendments.  —  No 

summons,  writ,  declaration,  return,  process,  judg- 
ment, or  other  proceedings  in  civil  causes,  in  any 
court  of  the  United  States,  shall  be  abated,  ar- 
rested, quashed,  or  reversed  for  any  defect  or  want 
of  form;  but  such  court  shall  proceed  and  give 
judgment  according  as  the  right  of  the  cause  and 
matter  in  law  shall  appear  to  it,  without  regarding 
any  such  defect,  or  want  of   form,    except   those 


§478  l-ROCEDURE.  1160 

which,  in  cases  of  demurrer,  the  party  demurring 
specially  sets  down,  together  with  his  demurrer,  a.3 
the  cause  thereof;  and  such  court  shall  amend 
every  such  defect  and  want  of  form,  other  than 
those  which  the  party  demurring  so  expresses; 
and  may  at  any  time  permit  either  of  the  parties 
to  amend  any  defect  in  the  process  or  pleadings, 
upon  such  conditions  as  it  shall,  in  its  discretion 
and  by  its  rules,  prescribe.     (Rev.  Stats,    sec.  954.) 

Amendments — In  general. — This  section  autliorizes 
ameudmeuts  only  iu  cases  properly  instituted  and 
then  only  in  matters  of  form.  (Lusk's  Admrs.  v. 
Kimball,  87  Fed.  Kep.  545.  This  section  is  remedial, 
and  should  he  liberally-  construed  (I'arks  v.  Turner, 
12  How.  39;  Tohey  v.  Clatlin,  3  Sum.  371);  Fed.  Gas. 
No.  14€G(J;  Gregg  r.  Gier,  4  McLean,  208;  Fed.  Gas. 
No.  57y9j;  hut  amendments  are  not  allowed  with  such 
liberality  in  penal  actions  or  forfeitures  as  in  civil  ac- 
tionii  (U.  S.  V.  Batchelder,  9  Int.  Kev.  Kec.  98; 
Fed.  Gas.  No.  14541);  and  a  criminal  information  can- 
not be  amended  at  the  trial  in  any  manner  affecting 
the  charge.  (Golumbia  v.  Herlihy,  1  McAr.  466.)  The 
power  to  amend  at  common  law  was  limited  to  trivial 
errors,  and  could  not  be  exercised  after  final  judg- 
ment (Smith  V.  AHyu,  1  I'aine,  453;  Fed.  Gas.  13000; 
Nelson  v.  Barker,  3  McLean,  379;  Fed.  Gas.  No.  10- 
101);  but  this  section  empowers  generally  any  United 
States  coui-l  to  disregai-d  mere  defects  iu  form  iu  giv- 
ing judgment,  except  those  which  the  party  demur- 
ring sets  down  as  the  cause  of  the  demurrer  (.Kosen- 
bach  V.  Dreyfuss,  1  Fed.  liep.  3i>4j;  and  authorizes 
the  allowance  of  amendments  during  the  trial.  (Bam- 
berger V.  Terry,  103  U.  S.  40.)  It  embraces  every  step 
in  the  cause  down  to  the  judgment.  (Roach  v.  Hu- 
liugs,  10  i'et.  319.)     Where  no  local  statute  or  rule  of 


1161  PBOCEDUBE.  §478 

local  law  is  involved,  the  power  to  amend  is  the  same 
in  attachment  suits  as  in  other  (Tilton  v.  Corfield,  93 
U.  S.  163);  and  amendments  of  mere  form,  not  going 
to  the  merits,  and  not  of  such  a  character  as  to  pre- 
judice, will  not  entitle  respondents  to  costs.  (Olsen  v. 
The  Edwin  Post,  6  Fed.  Rep.  314.)  A  defect  is  foa-mal 
when  a  defendant  must  of  neeesisity  be  guilty  of  a 
breach  of  the  law,  and  liable  to  an  action  if  the  declar- 
ation is  true.  (Jacob  v.  U.  S.,  1  Brocli.  520;  Fed.  Cas. 
No.  7157.)  This  section,  except  the  last  clause,  relates 
to  defects  which  are  mere  matters  of  form,  an.d  the 
last  clause  embraces  matters  of  substance.  (Smith  v. 
Allyn,  1  Paine,  453;  Fed.  Cas.  No.  13(X>0.)  Tlie  power 
is  confined  to  process  and  pleadings,  and  reaches  all 
defects,  but  does  not  extend  to  the  judgment.  (Smith 
V.  Allyn,  1  Paine,  453;  Fed.  Cas.  No.  13000.)  It  ex- 
tends to  actions  brought  by  the  United  States. 
(.Jacob  V.  U.  S.,  1  Broeli.  520;  Fed.  Cas.  7157.) 

Discretion  of  court. — The  allowance  of  amendments 
In  general  rests  in  the  sound  discretion  of  the  court. 
(Ex  parte  Bradstreet,  7  Pet.  634;  "Wright  v.  Hollings- 
worth,  1  Pet.  165;  Walden  v.  Craig,  9  Wheat.  576;  U. 
S.  V.  BufoTd,  3  Pet.  12;  Mathseon  v.  Grant,  2  How. 
263;  U.  S.  V.  Batchelder,  9  Int.  Rev.  Rec.  98;  Fed.  Cas. 
No.  14541.)  Sterens'  Admrs.  v.  Nichols,  157  U.  S.  370; 
Phillip  Schneider  B.  Co.  v.  American  Ice  M.  Co.,  40 
U.  S.  App.  382;  77  Fed.  Rep.  138;  Jefferson  v.  Burn- 
hams,  U.  S.  App.  85  Fed.  Rep.  924.)  And  if  the  party 
is  in  no  default  they  will  be  allowed  without  costs. 
(Lanning  v.  Dolph,  4  Wash.  C.  C.  624;  Fed.  Cas.  No. 
8073.)  So  where  plaintiff  was  notified  of  the  defect 
no  costs  will  be  allowed  (Hoclischer  v.  Binney,  3 
Wood.  &  M.  333;  Fed.  Cas.  No.  6316);  but  if  it  ma- 
terially varies  the  line  of  the  defense  plaintiff  may 
be  required  to  pay  all  accrued  costs.  (Wright  v. 
Hollings worth,  1  Pet.  105;  Corp.  v.  Beatty,  1  Cranch 
C.  C.  234;  Fed.  Cas.  No.  5344;  Ferris  v.  Williams,  1 


§  478  PROCEDUBE.  1162 

Cranch  C.  C.  281;  Fed.  Cas.  No.  4749;  Page  v.  Hodg- 
son, 1  Cranch  C.  C.  508;  Fed.  Cas.  No.  10853;  Elliott 
V.  Holmes,  1  MeLeau,  466;  Fed.  Cas.  No.  4392;  Pierce 
V.  Strickland,  2  Story,  292;  Fed.  Cas.  No.  11147;  Fred- 
ler  V.  Carpenter,  2  Wood.&M.  211;  Fed.  Cas.  No.  4759; 
Sanders  v.  Hamilton,  2  Hayw.  282;  Fed.  Cas.  No.  12- 
294.)  The  payment  of  costs  is  not  a  condition  pre- 
cedent, unless  made  so  by  order.  (Wigfield  v.  Dyer» 
1  Cranch  C.  C.  403;  Fed.  Cas.  No.  17622;  Wheaton  v. 
Love,  1  Cranch  C.  C.  451;  Fed.  Cas.  No.  17485;  Butts 
V.  Chapman,  1  Cranch  C.  C.  570;  Fed.  Gas.  No.  2257.) 
Where  the  defendant  misled  the  plaintiff,  leave  to 
amend  the  plea  will  be  given  only  on  payment  of 
costs  (Anonymous,  2  Wash.  C.  C.  270;  Fed.  Cas.  No. 
476);  so  after  plea  of  misnomer  (Payen  v.  Hodgson,  1 
Cranch  C.  C.  508;  Fed.  Cas.  No.  10853);  or  on  leave 
to  substitute  a  general  denial  (Krouse  v.  Sprogell,  1 
Oranch  C.  C.  78;  Fed.  Cas.  No.  7940;  see  Milburne 
V.  Kearnes.  1  Cranch  C.  C.  77;  Fed.  Cas.  No.  9543); 
an  amendment  may  be  allowed  with  the  costs  of  the 
term  only  (Greeley  v.  Smith,  3  Story,  76;  Fed.  Cas.  No. 
5747);  or  the  party  applying  may  be  required  to  pay 
the  expenses  of  the  adverse  party.  (U.  S.  v.  Batchel- 
der,  9  Int.  Rev.  Rec.  98;  Fed.  Cas.  No.  14541.)  An 
amendment  varying  the  amount  of  damages  was  al- 
lowed after  verdict  on  payment  of  costs  and  consent 
to  a  new  trial.  (Elting  v.  Campl>ell,  5  Blatchf.  183; 
Fed.  Cas.  No.  4422.)  The  granting  or  refusing  leave 
to  plead  anew  is  in  the  discretion  of  the  court  (Good 
V.  Martin,  1  Col.  406);  and  pleas  filed  before  amend- 
ment may  be  allowed  to  stand,  or  defendant  may 
plead  de  novo  (Tieruan  v.  Woodruff,  5  McLean,  135; 
Fed.  Cas.  No.  14027;  Wright  v.  Hollingsworth,  1  Pet. 
165;  Furniss  v.  Ellis,  2  Brock.  14;  Fed.  Cas.  No.  5162; 
Corp.  V.  Beatty,  1  Cranch  C.  C.  234;  Fed.  Cas.  No. 
5344;  Bank  v.  Hyatt,  4  Cranch  C.  C.  38;  Fed.  Cas. 
No.  869);  but  going  to  trial  after  amendment    of    a 


1163  PKOCEDUBE.  §478 

declaration  without  objection  is  a  waiver  of  right  to 
plead  de  novo.  (Wright  v,  Hollingsworth,  1  Pet.  165.) 
Amendments  to  pleadings  after  two  demurrers  sus- 
tained are  allowed  in  discretion,  and  the  court  will 
permit  them  on  terms  where  the  case  is  important, 
and  to  prevent  part  of  plaintiff's  remedy  from  being 
cut  off.  (Wilbur  v.  Abbot,  6  Fed.  Rep.  817.)  The 
court  in  its  discretion  may  determine  whether,  on  an 
amendment,  the  submission  of  the  cause  ought  to  be 
vacated.    (Bamberger  v,  Terry,  103  U.  S.  40.) 

Continuance.— If  a  material  amendment  is  allowed, 
the  opposite  party  may  have  a  continuance  (Schnert- 
zell  V.  Purcell,  1  Cranch  C.  C.  246;  Fed.  Cas.  No.  12- 
472;  Corp.  v.  Beatly,  1  Cranch  a  C.  234;  Fed.  Cas.  No. 
5344;  Elliott  v.  Holmes,  1  McLean,  466;  Fed.  Cas.  No. 
4392;  Walker  v.  Johnson,  2  McLean,  255;  Fed.  Cas. 
No.  17075;  Wyatt  v.  Harden,  Hemp.  17;  U.  S.  v. 
Whisljy,  7  Phila.  603;  Fed.  Cas.  No.  16071);  and  if  de- 
fendant amend  his  plea  plaintiff  may  have  a  continu- 
ance and  costs  also  (Semmes  v.  O'Neale,  1  Cranch  G. 
C.  246;  Fed.  Cas.  No.  12054;  Marsteller  v.  McLean,  1 
Cranch  C.  C.  550;  Fed.  Cas.  No.  9138;  Short  v.  Wilkin- 
son, 2  Cranch  C.  C.  22;  Fed.  Cas.  No.  12810;  or  his 
option  between  a  continuance  and  costs  (Milburne  v. 
Kearnes,  1  Cranch  C.  C.  77;  Fed.  Cas.  No.  9543);  or 
defendant  may  be  required  to  pay  the  costs  of  the 
term  (Krouse  v.  Sprogell,  1  Cranch  C.  C.  78;  Fed.  Cas, 
No.  7940);  or  all  costs  up  to  the  time  of  filing  the 
amendment  (Semmes  v.  O'Neale,  1  Cranch  C.  C.  246; 
Fed.  Cas.  No.  12654;  Marsteller  v.  McLean,  1  Cranch 
C.  C.  550;  Fed.  Cas.  No.  9138;  Short  v.  Wilkinson,  2 
Cranch  C.  C.  22;  Fed.  Cas.  No.  12810;  Anonymous,  2 
Wash.  C.  C.  270;  Fed.  Cas.  No.  476.) 

Process.— The  power  to  alter  process  embraces  the 
whole  process  of  the  suit  until  the  satisfaction  of  the 
judgment  (Cooke  v.  Avery,  14T  U.  S.  375).  The  United 


§478  PKOCEDUBE.  1164 

states  courts  have  plenary  power  to  allow  amend- 
ments of  process  (Eberly  v.  Moore,  24  How.  147), 
where  there  is  anything  to  amend  by  (Furniss  v.  Ellis, 
2  Brock.  14;  Fed.  Cas.  No.  51G2;  Randolph  v.  Barrett, 
16  Fed.  Rep.  138;  Tayloe  v.  Wharfield,  2  Cranch  C.  C. 
248;  Fed.  Cas.  No.  13772);  and  so  of  criminal  pro^ 
cess  in  matters  of  form  (Anonymous,  1  Gall.  22; 
Fed.  Cas.  No.  444);  but  if  process  is  ineffectual,  no 
amendment  can  be  made  which  would  render  it 
effectual.  (Brown  v.  Pond,  5  Fed.  Rep.  31.)  The 
power  gi-anted  is  a  power  to  amend  a  defect  in 
process,  and  a  i>0'wer  to  amend  a  want  of  form 
in  process  (D wight  v.  Merritt,  18  Blatchf.  305;  4 
Fed.  Rep.  616);  as  a  neglect  to  advance  a  writ  with 
the  cause  of  action  (Miller  v.  Gages,  4  McLean^  436; 
Fed.  Cas.  No.  9571);  or  a  mistake  of  the  clerk  in  the 
title  in  a  writ.  (Furniss  v.  Ellis,  2  Brock.  15;  Fed. 
Cas.  No.  5162);  but  see  Albers  v.  Whitney,  1  Story, 
310;  Fed.  Cas.  No.  137.)  A  writ  calling  defendant  by 
a  wrong  name  may  be  amended  by  consent  (Elliott 
V.  Holmes,  1  McLean,  466;  Fed.  Cas.  No.  4392);  as  by 
striking  out  administrator  and  inserting  executor 
(Randolph  v.  Barrett,  16  Pet.  138);  or  by  correcting 
the  corporate  name  of  plaintiff  (Georgetown  v. 
Beatty,  1  Cranch  C.  C.  234;  Fed.  Cas.  No.  5344);  but 
leave  to  strike  out  the  name  of  the  wife  may  be  re- 
fused. (Moores  v.  Carter,  Hemp.  64;  Fed.  Cas.  No. 
9782a.)  A  summons  may  be  amended  by  the  subse- 
quent addition  of  the  signature  of  the  clerk,  and  seal 
of  the  court  (Dwight  v.  Merritt,  4  Fed.  Rep.  614;  S. 
C.  18  Blatchf.  30G);  but  a  summons  issued  from  a 
State  court  is  not  process  within  this  section. 
(Dwight  V.  Merritt,  4  Fed.  Rep.  614.)  The  court  has 
discretion  to  permit  an  officer  to  amend  his  return 
with  or  without  notice  at  any  time  (Rickards  v.  Ladd, 
6  Saw.  40;  Fed.  Cas.  11804),  as  to  both  mesne  and 
final  process.    (Phoenix  lus.  Go.  v.  WaJrath,  1  Fed. 


I 


1165  PKOCKDURK.  §478 

Rep.  775;  Semmes  v.  U.  S.,  91  U.  S.  21;  French  v.  Ed- 
wards, 5  Saw.  266;  Fed.  Cas.  No.  5098.)  But  a  sheriff 
cannot  amend  his  return  on  a  summons  after  the 
cause  has  been  removed  to  a  Federal  Court  (Hawkins 
V.  Peirce,  79  Fed.  Hep.  452).  An  execution  may  be 
made  to  conform  to  the  judgment  (Murphy  v.  Lewis, 
Hemp.  17;  Fed.  Cas.  No.  181(X)  a);  so  a  fieri  facias  may 
be  amended  by  strilving  out  the  name  of  the  deceased 
plaintiff  (Lane  v.  Beltzlioover,  Taney,  110;  Fed.  Cas. 
No.  8047);  and  longer  time  be  given  to  a  State  than 
to  other  parties.  (Rhode  Island  v.  Massachusetts,  13 
Pet.  23.)  A  capias  may  be  amended  by  inserting  the 
christian  name  of  the  plaintiff  (Birch  v.  Butler,  1 
Cranch  C.  C.  319;  Fed.  Cas.  No.  1425);  but  not  so  as 
to  alter  the  name  of  the  plaintiff.  (Oomegyss  v.  Robb, 
2  Cranch  C.  C.  141;  Fed.  Cas.  No.  3049.  The  return  to 
a  writ  of  peremptory  mandamus  may  be  amended 
(Supervisors  v.  Durant,  9  Wall.  736),  even  after  the 
return  day  (Linthicum  v.  Remington,  5  Cranch  C.  C. 
546;  Fed.  Cas.  No.  8377),  or  after  the  marshal  has 
ceased  to  hold  office.  (Cushing  v.  Laird,  4  Ben.  70; 
Fed.  Cas.  No.  3508.)  A  court  of  the  United  States, 
sitting  as  a  court  of  law,  has  an  equitable  power  over 
its  own  process  to  prevent  abuse,  oppression,  and  in- 
justice, which  power  may  be  involved  by  a  stranger  to 
the  litigation,  as  Incident  to  the  jurisdiction  already 
vested,  and  without  regard  to  his  own  citizenship. 
(Gumbel  v.  Pitliin,  124  U.  S.  131.) 

Amendment  to  Pleadings.— The  court  is  authorized 
at  any  time  during  the  trial  to  allow  an  amendment 
to  the  pleadings,  and  where  it  has  done  so  it  rests 
in  its  discretion  to  determine  whether  the  submission 
of  the  case  ought  not  to  be  vacated.  (Bamberger  v. 
Terry,  103  U.  S.  40.)  Some  amendments  are  permitted 
at  any  stage  of  the  proceedings  (Walden  v.  Bodley,  14 
Pet.  156;  Keene  v.  Wheatley,  4  Phila.  157;  Fed.  Cas. 
No.  7644);  so  a  bill  may  be  amended  after  demurrer 
Fed.  Proc— 98. 


§478  PROCEDURE.  11&6 

sustaine<3  (Hunt  v.  Rousmaniere,  2  Mason,  342;  Fed. 
Cas.  No.  6898;  Fisher  v.  Ruthei-ford,  Bald.  188;  Fed. 
Gas.  No.  4823);  as  by  making  new  parties  even  after 
the  case  has  been  remanded  from  the  supreme  court 
(Russell  V.  Clark,  7  Cranch,  69;  Caldwell  v.  Taggart,  4 
Pet.  190);  or  after  healing  so  as  to  make  out  a  new 
case  on  the  same  subject-matter.  (Neale  v.  Neales, 
9  Wall.  1;  Battle  v.  Mut.  L.  Ins.  Co.,  10  Blatchf.  417; 
Fed.  Cas.  No.  1109.)  But  an  amendment  of  an  in- 
tervenor's  claim  for  personal  injuries  setting  up  a  dis- 
tinct gi'ound  of  negligence,  is  too  late,  after  a  master 
has  finished  a  hearing  and  is  preparing  his  report 
(Clyde  V.  Richmond  &  D.  R.  Co.,  59  Fed.  Rep.  394). 
The  commissioner  has  no  power  to  amend  the  com- 
plaint or  warrant  iia  an  extradition  case,  or  to  supply 
defects  by  his  certificate  after  the  case  is  closed, 
and  a  writ  of  certiorari  is  served  upon  him.  (Ex 
parte  Lane,  6  Fed.  Rep.  34.)  Notice  for  leave  to 
amend  should  be  given  to  the  adverse  party.  (Good 
V.  Martin,  1  Col.  40G.)  A  pleading  may  be  amended 
so  as  to  bring  the  case  within  the  exception  to  the 
statute  of  limitations  (Piatt  v.  Vattier,  9  Pet.  405; 
The  Harmony,  1  Gall.  123;  Fed.  Cas.  No.  6081;  Tier- 
man  V.  Woodruff.  5  McLean,  135;  Fed.  Cas.  No.  14- 
027);  as  that  the  fraud  was  not  discovered  until  the 
time  that  would  remove  the  bar  of  the  statute.  (Whar- 
ton V.  Lowroy,  2  Dall.  304.)  A  plea  of  the  statute  of 
limitations  can  be  amended  only  when  shown  neces- 
sary for  the  justice  of  the  case.  (Thompson  v.  Af- 
flick,  2  Cranch  C.  C.  40;  Fed.  Cas.  No.  13939.)  Blanks 
may  be  filled  in  a  declaration  to  avoid  the  statute  of 
limitations  on  payment  of  costs.  (Ferris  v.  Williams, 
1  Cranch  C.  C.  281;  Fed.  Cas.  No.  4749.)  Leave  to  file  a 
plea  of  the  statute  of  limitations  applied  for  out  of 
time  will  be  refused.  (Read  v.  Clark,  3  McLean,  480; 
Fed.  Cas.  No.  11643.)  Leave  may  be  granted  to  verify 
pleadings  as  required  by  statute  (Loving  v.  Fairchild, 


1167  PROCEDURE.  §  478 

1  McLean,  333;  Fed.  Cas.  No.  8556);  but  not  on  the 
.  trial  to  the  surprise  of  the  plaintiff.     (Benedict  v. 
Maynard,  6  McLean,  21;  Fed.  Cas.  No.  1296.) 

Plaintiff's  refusal  to  comply  with  an  order  requir- 
ing him  to  separately  paragraph  his  different  causes 
of  action  according  to  the  local  practice,  justifies  a 
dismissal  of  his  case.  (Thompson  v.  Gatlin,  19  U.  S. 
App.  157;  58  Fed.  Rep.  534.)  If  the  court  has  jurisdic- 
tion at  the  commencement  of  a  suit,  subsequent 
amendments  of  pleadings  do  not  affect  the  jurisdic- 
tion. (Tug  River  Coal  &  Salt  Co.  v,  Brigel,  U.  S.  App., 
86  Fed.  Rep.  818.)  The  circuit  court  can,  in  its  dis- 
cretion, allow  amendments  to  the  pleadings  for  the 
purpose  of  more  fully  presenting  the  facts  at  issue 
between  the  parties  even  after  reversal  by  the  su- 
preme court  of  the  decree  of  the  circuit  court  sustain- 
ing plaintiff's  exceptions  to  tlie  answer  and  granting 
the  relief  prayed  for.  (In  re  Sanford  Fork  &  Tool 
Co.,  160  U.  S.  247.) 

Amendment  as  to  parties. — A  defect  of  parties  may 
be  cured  by  amendment  (Douglas  v.  Butler,  6  Fed. 
Rep.  228);  OT  by  striking  out  parties  (Connolly  v.  Tay- 
lor, 2  Peters,  556;  C>ole  S.  M.  Co.  v.  Virginia  G.  H.  W. 
Co.,  1  Saw.  470;  Fed.  Cas.  No.  2989);  or  by  substitut- 
ing the  proper  party  as  plaintiff  (Essex  Co.  Nat.  Bank 
V.  Bank  of  Montreal,  15  Am.  Law.  Reg.,N.  S., 418;  Fed. 
Cas.  No.  4532);  but  it  cannot  be  amended  so  as  to 
make  new  parties  (Morris  v.  Barney,  1  Cranch  C.  C. 
245;  Fed.  Cas.  No.  9826;  Luke's  Admrs.  v.  Kimball, 
85  Fed.  Rep.  545);  nor  so  as  to  strike  out  or  alter  the 
name  of  one  of  ttie  plaintiffs  (Moores  v.  Cailer,  Hemp. 
64;  Fed.  Cas.  No.  9782a;  Comegyss  v.  Robb,  2  Cranch 
C.  C.  141;  Fed.  Cas.  No.  3049);  but  it  may  be  amended 
by  inserting  the  names  of  the  members  of  a  firm 
(Tibbs  V.  Parrott,  1  Cranch  C.  C.  177;  Fed.  Cas.  No. 
14022);  but  not  if  the  form  of  the  action  is  such  that 
the  member  is  already  embraced  (United  States  v.  Mc- 


§478  PEOCEDURE.  1168 

Coy,  54  Fed.  Eep.  107);  so  an  error  In  a  name  may- 
be corrected  (Furniss  v.  Ellis,  2  Brock.  14;  Fed.  Cas. 
No.  5162))  as  in  the  name  of  a  corporation.  (Corp.  of 
Georgetown  v.  Beatty,  1  Cranch  C.  C.  234;  Fed.  Cas. 
No.  5344.)  An  amendment  will  be  allowed,  striking 
out  a  name  from  a  petition  (Whitaker  v.  Pope,  2 
Woods,  463;  Fed.  Cas.  No.  17528);  and  on  a  plea  of 
misnomer  plaintiff  may  amend  as  to  the  name  of 
defendant  (Nelson  v.  Barker,  3  McLean,  379;  Fed.  Cas. 
No.  10101;  Scull  V.  Briddle,  2  Wash.  C.  C.  200;  Fed. 
Cas.  No.  12570;  see  Craig  v.  Brown,  Pet.  C.  C.  139; 
Fed.  Cas.  No.  3326);  or  by  striking  out  the  name  of  a 
defendant.  (Greeley  v.  Smith,  3  Story,  76;  Fed.  Cas. 
No.  5747.)  Dismissal  by  plaintifC  of  the  action  as 
against  some  of  thie  defendants,  not  on  the  merits, 
is  not  a  bar  to  a  subsequent  action  on  the  cause 
against  such  defendants.  (Huckill  v.  Marysville  &  B. 
S.  R.  Co.,  72  Fed.  Kep.  745.)  Leave  to  dismiss  as  to 
certain  defendants  will  not  be  granted  after  the 
court  has  rendered  an  opinion  granting  a  motion  to 
direct  a  verdict  for  defendants.  (Wright  v.  Southern 
By.  Co.,  80  Fed.  Kep.  260.) 

Plaintiff's  pleadings.— The  declaration  may  be 
amended  at  any  stage  of  the  trial  if  not  actually  com- 
mitted to  the  jury  (Smith  v.  Barker,  3  Day,  312;  Fed. 
Cas.  No.  13013;  Mack  v.  Porter,  25  U.  S.  App.  595; 
72  Fed.  Rep.  236);  and  a  dismissal  may  be  sti'icken 
ooit  with  leave  to  amend  (liaunlng  v.  Dolph,  4  Wash. 
C.  C.  624;  Fed.  Cas.  No.  8073);  if  a  declaration  fails  to 
allege  the  matter  in  controversy  it  may  be  amended 
(Lanning  v.  Dolph,  4  Wash.  C.  C.  624;  Fed.  Cas. 
No.  8073);  and  the  claim  for  damages  may  be  in- 
creased. (Gregg  V.  Gier,  4  McLean,  208;  Fed.  Cas. 
No.  5799;  Good  v.  Martin,  1  Col.  406.)  A  party  may 
amend  his  complaint  so  as  to  demand  two-thirds  in- 
stead of  the  entire  property.  (Van  Zandt  v.  Argen- 
tine Min.  etc.  Co.,  2  McCiary,  159;  8  Fed.  Bep.  725.) 


1169  PROCEDURE.  §478 

The  amended  declaration  is  sufficient  if  it  arei-s  citi- 
zenship in  the  present  tense  (Birdsall  v.  Perego,  5 
Blatchf.  251;  Fed.  Cas.  No.  1435);  but  a  complainant 
cannot  abandon  his  case  and  make  a  new  and  dif- 
ferent one  by  amendments  (Sneed  v.  McCouU,  12 
How.  407;  Shields  v.  Barrow,  17  How.  130;  Goodyear 
V,  Bourn,  3  Blatchf.  260;  Fed.  Cas.  No.  5561.)  It  will 
not  be  allowed  to  change  from  an  action  on  the  case 
to  an  action  in  debt  (Ten  Broeck  V.  Pendleton,  5 
Craneh  C.  C.  464;  Fed.  Cas.  No.  13827;  Schoolfield  v. 
Fitzhugh,  1  Craneh  C.  C.  108;  Fed.  Cas.  No.  12474); 
but  it  is  allowed  when  the  cause  of  action  is  not 
changed  (Fiedler  v.  Carpenter,  2  Wood.  &  M.  211; 
Fed.  Cas.  No.  4759);  as  by  adding  a  new  count  of  a 
kindred  cause  of  action  (Tiernan  v.  Woodruff,  5  Mc- 
Lean, 135;  Fed.  Cas.  No.  14027;  Bowen  v.  Needles 
Natl.  Bank,  79  Fed.  Rep.  49);  and  founded  on  the 
same  transaction,  and  admitting  the  same  pleading, 
defense,  and  proof.  (Tiernan  v.  Woodruff,  5  McLean, 
135;  Fed.  Cas.  No.  14027;  U.  S.  v.  Batchelder,  9  Int. 
Eev.  Rec.  98;  Fed.  Cas.  No.  14541.)  A  declaration 
may  be  amended  so  as  to  refer  to  the  right  statute. 
(Rosenbach  v.  Drey  fuss,  1  Fed.  Rep.  391.)PlaiutifC  may 
be  allowed  to  withdraw  a  replication,  and  file  a  denial 
or  plea  (McGill  v.  Shehee,  1  Craneh  C.  C.  49;  Fed.  Cas. 
No.  8790):  but  he  cannot  amend  his  replication  after 
the  jury  is  sworn.  (Clark  v.  Mayfield,  3  Craneh  C.  C. 
353;  Fed.  Cas.  No.  2858.)  After  demurrer  sustained 
the  plaintiff  is  not  entitled  as  matter  of  right  to 
amend  his  bill;  it  is  within  the  discretion  of  the  court 
to  allow  it  (National  Bank  v.  Carpenter,  101  U.  S. 
567);  and  the  order  denying  the  motion  to  amend  is 
not  reviewable  if  the  record  does  not  show  what 
amendment  was  desired  (National  Bank  v.  Carpenter, 
101  U.  S.  567);  but  plaintiff  may  show  a  subsequent 
capacity  to  sue  after  demurrer  sustained.  (Swatzel 
V.  Arnold,  1  Woolw.  383;  Fed.  Cas.  No.  13682.)    When 


§478  PROCEDURE.  1170 

the  nature  of  the  suit  is  as  not  such  as  to  give  the 
court  jurisdiction  over  a  nonresident  defendant 
brought  in  by  sul>stituted  service,  the  court  has 
no  power  to  amend  the  pleadings  so  as  to  give  such 
jurisdiction.  (Adams  v.  Heclischer,  80  Fed.  Rep.  742.) 
When  a  complaint  is  amended  its  legal  effect  is  the 
same  as  though  it  had  originally  read  as  amended. 
(Bowden  v.  Bm-nham,  19  U.  S.  App.  448;  59  Fed.  Repw 
752;  Carnegie,  Phipps  &  Co.  v.  Hulbert,  36  U.  S.  App. 
81;  70  Fed.  Rep.  209.) 

Defendant's  pleading. — A  defendant  may  amend 
his  plea  (McGill  v.  Shehee,  1  Cranch  C.C.49;Fed.Ca3. 
No.  8796),  or  withdraw  a  plea  (Melbiu'ne  v.  Kearnes, 
1  Oi-anch  C.  C.  77;  Fed.  Cas.  No.  9543;  GiU  v.  Patten, 
1  Cl-anch  C.  C.  114;  Fed.  Cas.  No.  5427;  Short  v.  Wilk- 
inson, 2  Cranch  C.  C.  22;  Fed.  Cas.  No.  12810;  or  file 
an  additional  plea  (Semmes  v.  O'Neale,  1  Cranch  G. 
C.  246;  Fed.  Cas.  No.  12«54;  Teasdale  v.  Jordan,  2 
Hayw.  28;  Fed.  Cas.  No.  13814);  or  add  an  affidavit 
thereto  (Loving  v.  Fairchild,  1  McLean,  333;  Fed.  Cas. 
No.  8556);  or  he  may  withdraw  his  plea  and  demur 
(Deakins  v.  Lee,  1  Cranch  C.  C.  442;  F'ed.  Cas.  No. 
3697;  Krouse  v.  Sprogell,  1  Cranch  C.  C.  78;  Fed.  Cas. 
No.  7940);  Alricks  t.  Slater,  1  Cranch  C.  C.  72;  Fed. 
Cas.  No.  259);  but  upon  the  overniling  of  the  demur- 
rer the  court  may  refuse  to  permit  him  to  file  an  an- 
swer setting  up  a  new  cause  of  action.  (Baltimore 
&  O.  R.  R.  Co.  V.  Camp,  81  Fed.  Rep.  807.)  Defend- 
ant may  file  a  plea  in  abatement  (Eberly  v.  Moore,  24 
How.  147);  or  an  additional  plea,  and  amend  those 
already  filed.  (Polard  v.  D wight,  4  Cranch,  421;  Ma- 
rine Ins.  Co.  v.  Hodgson,  6  Cranch,  206;  U.  S.  v. 
Kirkpatrick,  9  Wheat.  720;  Day  v.  Chism,  10  Wheat. 
449.)  New  pleas  should  be  allowed  only  where  a 
good  reason  is  shown  for  it,  and  on  terms  (Childs  v. 
Lenig,  1  Wall.  Jr.  305;  Fed.  Cas.  No.  2680);  but  leave 
to  file  a  special  plea  is  allowed  where  it  does  not  ap- 


1171  PEOCEDUEE.  §478 

pear  clearly  bad  (Gillen  v.  Patten,  1  Cranch  0.  C. 
114;  Fed.  Cas.  No.  5427),  and  an  insuflEicient  plea  will 
be  rejected.  (Kerr  v.  Force,  3  Cranch  C.  C.  8;  Fed. 
Cas.  No.  7730.)  It  will  not  be  allowed  if  it  essential- 
ly changes  the  ground  of  the  defense,  unless  for  co- 
gent reasons  (Smith  v.  Babcoclj,  2  Woods  &  M.  246; 
Fed.  Cas.  No.  13009;  Morehead  v.  Jones,  3  Wall.  Jr. 
306;  Fed.  Cas.  No.  9791);  and  where  the  case  is  called 
for  trial  only  when  necessary  for  the  justice  of  the 
case  (Bullock  v.  Van  Pelt,  Bald.  463;  Fed.  Cas.  No. 
2131;  Bastable  v.  Wilson,  1  Cranch  C.  C.  124;  Fed. 
Cas.  No.  1097;  Allen  v.  Magi-uder,  3  Cranch  C.  C.  6; 
Fed.  Cas.  No.  230;  Childs  v.  Lenig,  1  Wall.  Jr.  305; 
Fed.  Cas.  No.  2680);  and  it  cannot  be  filed  after  the 
jury  has  been  sworn  (Lanning  v.  Dolph,  4  Wash. 
C.  C,  624;  Fed.  Cas.  No.  8073),  nor  if  judgment  on 
demurrer  has  been  affirmed  on  appeal.  (Hodgson  v. 
Marine  Ins.  Co.,  1  Cranch  0.  C.  569;  Fed.  Cas.  No. 
6566) ;  nor  permit  defendant  to  amend  his  answer  so  as 
to  deny  a  fact  affirmatively  passed  uix)n  and  deter- 
mined by  the  supreme  court  (Walker  v.  Brown,  86  Fed. 
Rep.  364).  The  court  will  permit  the  withdrawal  of  a 
demuiTer  (Sucldey  v.  Slade,  5  Cranch  C.  C.  123;  Fed. 
Cas.  No.  13587) ;  but  leave  to  amend  a  demurrer  which 
does  not  go  to  the  merits  will  be  refused  (Offutt  v. 
Beatty.  1  Cranch  C.  C.  213;  Fed.  Cas.  No.  10448). 
The  fact  of  not  setting  out  special  defenses  cannot 
be  cured  by  filing  special  notice  of  defense  (Doughty 
V.  West,  2  Fish.  Pat.  Cas.  558;  Fed.  Cas.  No.  4029). 
An  amendment  to  the  answer  will  not  be  allowed 
unless  good  cause  and  the  use  of  diligence  be  shown 
(Lamb  v.  Parkman,  21  Law  Kep.  589;  Fed.  Cas. 
No.  8019.)  An  admission  cannot  be  withdrawn  if 
there  is  no  allegation  of  mistake  in  fact  or  of  law 
(Morehead  v.  Jones,  3  Wall.  Jr.  306;  Fed.  Cas.  No, 
9791;  Waterman  v.  Merrill,  2  Abb.  U.  S.  478;  Fed. 
Cas.  No.  17258).  The  amendment  of  an  answer 
by    the    assertion    of    an    additional    fact    was    re- 


§  478  PROCEDURE.  1 172 

fused,  where  the  fact  was  known,  at  the  time  the 
answer  was  filed  (Cross  v.  Morgan,  6  Fed.  Rep.  241). 
It  Is  not  allowed  where  due  diligence  has  not  been 
exercised  (Snead  v.  McCoull,  12  How.  407;  Clifford  v. 
Coleman,  13  Blatchf.  210,  Fed.  Cas.  No.  2894;  Ross 
V.  Carpenter,  6  McLean,  382;  Fed.  Cas.  No.  12072; 
Indiana  Rubber  Co.  v.  Phelps,  8  Blatchf.  185;  Fed. 
Cas.  No.  7025;  Webster  Loom  Co.  v.  Higgins,  13 
Blatchf.  340;  Fed.  Cas.  No.  17341;  Suydam  v.  Trues- 
dale,  6  McLean,  459;  Fed.  Cas.  No.  13656);  but  it  is 
not  necessary  that  the  new  fact  should  be  first  estab- 
lished (Smith  V.  Babcocli,  2  Wood  &  M.  246;  Fed.  Cas. 
No.  13U09). 

At  law.— An  .amendment  cannot  be  allowed  to 
change  the  form  of  action  (Scholfield  v.  Fitzhugh,  1 
Cranch  C.  C.  108;  Fed.  Ca,s.  No.  12474;  but  see  The 
Harmony,  1  Gall.  123;  Fed.  Cas.  No.  6081.)  A  declar- 
ation in  ejectment  may  be  amended  by  inserting  a 
later  date  of  the  lease.  (Walden  v.  Craig,  9  Wheat. 
57G;  Blacljwell  v.  Patton,  7  Cranch,  471.)  The  State 
of  the  demise  may  be  amended  (Blackwell  v.  Patton, 
7  Cranch,  471;  Smith  v.  Vaughan,  10  Peters,  367;  Mc- 
Daniel  v.  Wailes,  4  Cranch  C.  C.  201;  Fed.  Cas.  No. 
8746;  see  Day  v.  Chism,  10  Wheat.  449);  and  it  may 
be  extended  after  judgment,  but  not  except  on  notice. 
(Ledgerwood  v.  Pickett,  1  McLean,  143;  Fed.  Cas.  No. 
8175.)  Stating  it  under  a  new  title  will  not  be  al- 
lowed. (Gale  V.  Babcock,  4  Wash.  C.  C.  199;  Fed. 
Cas.  No.  5188.)  If  judgment  in  ejectment  is  rendered 
after  the  lapse  of  the  terms  stated  in  the  demise,  it 
may  be  amended  by  enlarging  the  term.  (Walden  v. 
Craig,  9  Wheat.  576.)  In  slander  an  amendment 
may  be  allowed  changing  the  words  charged  (Dough- 
erty V.  Bentley,  1  Cranch  C.  C.  219;  Fed.  Cas.  No. 
4024);  and  in  libel  an  answer  was  allowed  to  be 
amended  by  inserting  denials  in  respect  to  the 
amount  of  damages.     (Goodyear  D.  V.  Co.  v.  White, 


1173  PROCEDUKE.  §478 

17  Blatchf.  5;  Fed.  Cas.  No.  5601.)  A  libel  or  informa- 
tion at  common  law  to  enforce  a  forfeiture  may  be 
amended.  (U.  S.  v.  Stevenson,  G  Int.  Rev.  Rec.  221; 
Fed.  Cas.  No.  16398;  U.  S.  v.  Batchelder,  9  Int.  Rev. 
Rec.  98;  Fed.  Cas.  No.  14541;  U.  S.  v.  Barrels,  3  Int. 
Rev.  Rec.  114;  Fed.  Cas.  No.  16502;  U.  S.  v.  Whisliey 
7  Phila.  003;  Fed.  Cas.  No.  16671;  U.  S.  v.  .Casks,  1 
Abb.  U.  S.  573;  Fed.  Cas.  No.  15943;  Anon.,  1  Gall. 
22;  Fed.  Cas.  No.  444.)  So  a  petition  on  a  court  of 
claims  may  be  amended.  (Molina  v.  U.  S.,  6  Ct.  of 
01.  269.)  When  the  jury  find  larger  damages  than  are 
laid  in  the  declaration,  and  plaintiff  aslis  to  amend, 
defendant  is  entitled  to  a  new  trial  and  to  costs. 
(Etting  V.  Campbell,  5  Blatchf.  183;  Fed.  Cas.  No. 
4422.) 

In  equity.— Amendments  in  mere  matters  of  form, 
dates,  or  verbal  inaccuracies,  are  liberally  allowed. 
(Smith  V,  Babcocli,  3  Sum.  583;  Fed.  Cas.  No.  13008.) 
The  court  has  power  in  the  interest  of  justice  to  per- 
mit an  amendment  to  defective  pleadings,  both  of 
bills  and  answers.  (Neale  v.  Neales,  9  Wall.  1;  Foote 
V.  Silsby,  1  Blatchf.  545;  Fed.  Cas.  No.  4918;  Battle 
V.  Mut.  L.  Ins.  Co..  10  Blatchf.  417;  Fed.  Cas.  No. 
1109;  Caster  v.  Woods,  Bald  289;  Fed.  Cas.  No.  2505.) 
A  bill  may  be  amended  by  maliing  new  parties 
(Fisher  v.  Rutherford,  Bald.  188;  Fed.  Cas.  No.  4823); 
or  by  adding  an  averment  of  citizenship  (Fisher  v. 
Rutherford,  Bald.  188;  Fed.  Cas.  No.  4823;  Keene  v. 
Wheatley,  4  Phila.  157;  Fed.  Cas.  No.  7644);  even 
after  interlocutory  decree  on  demurrer  (Fisher  v. 
Rutherford,  Bald.  ISS;  Fed  Cas.  No.  4823;  Ililliard 
V.  Brevoort.  4  McLean,  24;  P'ed.  Cas.  No.  6505;  Spof- 
ford  V.  Ritten,  4  McLean,  253;  Fed.  Cas.  No.  13244); 
and  even  after  remand  from  the  supreme  court  (Jack- 
son V.  Ashton,  10  Pet.  480);  or  by  striking  out  an 
invitation  to  other  creditors  to  come  in  at  anj^  time 
before  answer.    (Yates  v.  Arden,  5  Cranch  C.  C.  526; 


§478  PEOCEDUKE.  1174 

Fed.  Cae.  No.  18126.)  So  a  bill  may  be  amended  by- 
adding  a  prayer  for  relief.  (Horsburg  v.  Baker,  1  Pet. 
232.)  It  may  be  amended  so  as  to  conform  its  special 
prayer  to  its  real  purpose.  (.Partee  v.  Thomas,  11 
Fed.  Eep.  772;  see  Estiill  t.  Deckard,  4  Baxt.  497.) 
So  if  the  facts  authorize  a  redemption  from  a  cred' 
itors'  sale  though  the  period  for  redemption  is  past, 
the  court  will  permit  an  amendment  to  the  prayer 
for  relief.  (Burgess  v.  Graftam,  10  Fed.  Kep.  216.) 
If  the  amendment  introduces  a  new  case,  defendant 
maj'  plead  in  abatement  or  otherwise.  (Keene  v. 
Wheatley,  4  Phila.  157;  Fed.  Cas.  No.  7644.)  When 
due  diligence  is  shown,  the  bill  may  be  amended, 
even  though  the  claim  is  stale.  (Wharton  v.  Lowrey, 
2  Dall.  364;  Fisher  v.  Rutherford,  Bald.  188;  Fed. 
Cas.  No.  4823;  Copen  v.  Flesher,  1  Bond,  440;  Fed. 
Cas.  No.  3211.)  Where  a  new  cause  of  action  is  in- 
tended by  an  amendment,  it  may  be  allowed  when  it 
corresponds  with  the  original  bill  (U,  S.  v.  Distilled 
Spirits,  1  Abb.  U.  S.  573;  Fed.  Cas.  No.  15943);  but  not 
when  it  introduces  a  new  cause  of  action  (The  Cir- 
cassian, 2  Ben.  171;  Fed.  Cas.  No.  2723;  see  Walden  v. 
Bodley,  14  Pet.  156);  but  an  amendment  which 
changed  the  character  of  the  bill  Avas  allowed  in  a 
special  case,  even  after  final  decree.  (The  Tremolo 
Patent,  23  Wall.  518.)  AVhere  the  original  petition 
was  lost,  the  court  may  allow  the  filing  of  a  new 
petition.  (Phillips  v.  Moore,  100  U.  S.  208.)  The 
amended  bill  should  state  so  much  of  the  original  bill 
as  is  necessary.  (Pierce  v.  West,  3  Wash.  C.  C.  354; 
Fed.  Cas.  No.  10910.)  An  amendment  relates  back 
to  the  filing  of  the  original  bill,  and  is  incorporated 
into  and  is  a  part  of  it.  (Gaylord  v.  Ft.  W.  M.  &  O. 
R.  Co.,  6  Biss.  286;  Fed.  Cas.  No.  5284.)  An  amend- 
ment was  allowed  where  it  was  -clear  the  cause  was 
tried  as  it  must  have  been  tried  had  the  bill  been 
originally  drawn  as  amended.     (Tremaine  v.  Ilitch- 


1175  PEOCEDURE.  §478 

cock,  23  "Wall.  518.)  On  a  motion  made  before  final 
argument,  leave  may  be  granted  to  amend  an  answer, 
so  as  to  set  up  a  new  defense.  (Snow  v.  Tapley,  13 
Off.  Gaz.  548;  Fed.  Gas.  No.  13147.)  An  application  to 
reform  an  answer  is  more  favorably  received  tlian 
one  to  strilie  it  off  and  substitute  another.  (Gaste 
V,  Wood,  Bald.  289;  Fed.  Gas.  No.  25U5.)  In  a  par- 
ticular case  an  amendment  was  allowed  so  as  to  deny 
the  validity  of  a  patent  (Morehead  v.  Jones,  3  Wall. 
Jr.  306;  Fed.  Gas.  No.  9791);  and  an  amendment  in  an 
answer,  on  the  ground  of  mistake  or  error  in  the 
admission  of  an  infringement,  was  denied.  (Ruggles 
v.  Eddy,  11  Blatchf.  524;  Fed.  Gas.  No.  12118.)  An 
amendment  will  not  make  evidence  admissible  which 
was  taken  under  objections  before  admission.  (Roberts 
V.  Buck,  6  Fish.  Pat.  Gas.  325;  Fed.  Gas.  N»o.  11897.) 
A  motion  to  amend  b^  adding  new  parties  defendant 
after  replication  where  plaintiff"  was  in  a  position 
to  make  the  amendment  before  will  not  be  allowed. 
(Glifford  V.  Goleman,  13  Blatchf.  210;  Fed.  Gas.  No. 
2894;  see  Gay  lord  v.  Fort  Wayne  &  Go.,  6  Biss.  286; 
Fed.  Gas.  No.  5284.)  A  bill  not  framed  with  a  view 
to  compel  the  receiver  and  back  tax  collector  to  pro- 
ceed with  the  collection  of  taxes  cannot  be  amended 
so  as  to  obtain  relief  against  such  collector.  (Meri- 
wether V.  Garrett,  102  U.  S.  472.)  An  amendment  to 
an  answer  cannot  be  made  after '  an  interlocutory 
decree.  (Wilson  v.  Tuberville,  2  Granch  G.  G.  27; 
Fed.  Gas.  No.  17844.)  In  equity  the  party  amending 
may  be  required  to  pay  costs.  (Foote  v.  Silsby,  1 
Blatchf.  545;  Fed.  Gas.  No.  4918;  Yates  v.  Arden, 
5  Granch  G.  G.  526;  Fed.  Gas.  No.  18126;  Davis  v. 
Leslie,  1  AbT).  Adm.  123;  Fed.  Gas.  No.  3639.)  A 
motion  to  amend  by  averment  on  information  and 
belief  that  the  invention  was  in  public  use  more  than 
two  years,  denied.  (Webster  Loom  Go.  v.  Higgings, 
13  Blatchf.  349,  954;  Fed.  Gas.  No.  17341.) 


§478  PROCEDURE.  1176 

In  admiralty.— A  libel  or  information  to  enforce  a 
forfeiture  may  be  amended  (The  Caroline,  7  Crauch, 
498;  The  Edward,  1  Wheat.  201);  or  a  libel  in  rem 
for  violation  of  a  municipal  law  (The  INlarianna  Flora, 
11  Wheat.  1;  Anon.,  1  Gall.  22;  Fed.  Cas.  No.  444); 
and  in  case  of  smuggling,  an  amendment  is  allowed, 
to  show  that  a  foreign-owned  vessel  is  liable  to  penalty 
for  the  infraction  of  duty  laws.  (U.  S.  v.  The  Queen, 
4  Ben.  237;  Fed.  Cas.  No.  16107.)  An  informal  libel  or 
information  in  rem  may  be  am(^nded  by  leave  of  court. 
(The  Caroline,  7  Cranch,  498.)  A  libel  in  admiralty 
may  be  amended  as  to  parties  (The  Commander-in- 
Chief,  1  Wall.  43),  by  striking  out  names  of  libelants 
(Taylor  v.  Harwood,  Taney,  437;  Fed.  Cas.  No.  13794); 
as  the  name  of  the  pilot  (Newell  v.  Norton,  3  Wall. 
257);  or  by  discharging  the  master  (United  States  v. 
The  Queen,  11  Blatchf.  416;  Fed.  Cas.  No.  16108);  but 
it  cannot  be  amended  by  striking  out  the  name  of  the 
sole  libelant  and  substituting  another.  (The  Detroit,  1 
Brown  Adm.  141;  Fed.  Ca.s.  No.  3832.)  It  may  be 
amended  by  striking  out  unnecessary  and  impertinent 
allegations  (Amer.  Ins.  Co.  v.  Johnson,  Blatchf.  &  H. 
9;  Fed.  Cas.  No.  303),  or  immaterial  averments  as  to 
ov.nership  (U.  S.  v.  The  Queen,  4  Ben.  237;  Fed.  Cas. 
No.  16107);  or  by  adding  new  allegations  (Tlie  Ed- 
ward, 1  AVheat.  201),  or  a  new  cause  of  forfeiture  (U. 
S.  V.  Whiskey,  7  Fhila.  603;  Fed.  Cas.  No.  16671);  but 
not  if  barred  by  the  statute  of  limitations  (U.  S.  v. 
Casks,  1  Abl).  U.  S.  573;  Fed.  Cas.  No.  15943;  The  Har- 
mony, 1  Gall.  123;  Fed.  Cas.  No.  6081);  or  averments, 
as  of  negligence  (The  Deer,  4  Ben.  352;  Fed.  Cas.  No. 
3737);  or  an  averment  that  it  is  prosecuted  for  all  in- 
terested who  may  come  in  and  establish  their  rights. 
(Amer.  Ins.  Co.  v.  Johnson,  Blatchf.  &  H.  9;  Fed. 
Cas.  No.  303.)  An  amendment  will  be  allowed  to 
enal)le  a  party  to  ol)tain  a  contribution  out  of  dam- 
ages due  for  the  loss  of  the  vessel.     (The  C.  U.  Fos- 


1177  PEOCEDURE.  §  478 

ter,  1  Fed.  Rep.  733.)  A  new  cause  of  action  may  be 
introduced  by  amendment  when  it  corresponds  with 
tlie  original  bill  (U.  S.  v.  Dist.  Spirits,  1  Abb.  U.  S. 
573;  Fed.  Cas.  No.  15943);  but  it  cannot  be  amended 
so  as  to  change  from  a  lil)el  in  rem  to  a  libel  in  per- 
sonam (The  Young  America,  1  Brown  Adm.  463;  P^'ed. 
Cas.  No.  18178),  or  so  as  to  increase  the  amount  of 
the  claim  (Agnew  v.  Dorman,  Taney,  388;  Fed.  Cas. 
No.  100),  nor  to  show  that  a  party  was  formerly 
owner,  and  sold  with  a  covenant  to  discharge  all 
liens.  (The  Prindiville,  1  Brown  Adm.  485;  Fed.  Cas. 
No.  11435.)  It  may  be  amended  by  inserting  a  prayer 
for  a  decree  against  a  party  liable,  even  after  a  de- 
cree in  rem  has  been  rendered.  (The  Zenobia.  Abb. 
Adm.  48;  Fed.  Cas.  No.  18208.)  An  amendment  to  an 
answer  will  be  allowed,  though  the  effect  be  to  de- 
feat the  action  and  compel  libelant  to  seek  another 
forum.  (Keppert  v.  Robinson,  Taney,  492;  Fed.  Cas. 
No.  11703.)  A  supplemental  libel  alleging  new  matter, 
and  an  answer  thereto,  may  be  filed  after  appeal  in 
the  discretion  of  the  court.  (U.  S.  v.  Dist.  Spirits,  1 
Abb.  U.  S.  573;  Fed.  Cas.  No.  15943.)  District  courts, 
in  the  exercise  of  a  sound  discretion,  may  allow  libels 
to  be  amended,  even  at  the  hearing  (Davis  v.  Leslie, 
Abb.  Adm.  123;  Fed.  Cas.  No.  3639;  The  William 
Peun,  3  Wash.  C.  C.  484;  Fed.  Cas.  No.  3373);  or 
at  any  stage  of  the  proceedings  (The  Hunter,  1  Ware, 
249;  Fed.  Cas.  No.  6904;  Pettingill  v.  Dinsmore,  2 
Ware,  212;  Fed.  Cas.  11045;  Nevitt  v.  Clarke,  Olcott, 
316;  The  Deer.  4  Ben.  352;  Fed.  Cas.  No.  3737;  The 
St.  John,  7  Blatchf.  220;  Fed.  Cas.  No.  12224),  till 
the  termination  of  the  cause  (The  Edwin  Post,  6  Fed. 
Rep.  206),  in  the  interest  of  substantial  justice.  (Pet- 
tingill V.  Dinsmore,  2  Ware,  212;  Fed.  Cas.  No.  11045; 
Anon,  1  Call.  22;  Fed.  Cas.  No.  444.)  It  may  be 
amended  in  the  circuit  court  (The  Sarah  Ann,  2  Sum. 
206;  Fed.  Cas.  No.  12342.  The  Morton,  1  Brown  Adm. 
Fed.  Prog— 99. 


J;  478  PROCEDURE.  1178 

137;  Fed.  Cas.  No.  9864);  and  a  defect  in  the  signa- 
ture will  not  be  regarded  if  it  appears  it  was  verified 
(Hardy  v.  Moore,  4  Fed.  Rep.  843);  it  may  be  allowed 
without  waiting  for  the  disposition  of  the  exceptions 
thereto.  (The  Western  Metropolis,  28  How.  Pr.  283.) 
A  supplemental  libel  and  an  answer  thereto  may  be 
filed  after  appeal.  (The  Boston,  1  Sum.  328;  Fed. 
Cas.  No.  1073;  Lamb  v.  Parkman,  21  Law  Rep.  589.) 
So  in  collision  cases  (The  Pennsylvania.  12  Blatchf. 
67;  Fed.  Cas.  No.  10951),  and  after  reversal  where 
there  is  a  want  of  a  substantial  averment  (The  Anne 
V.  U.  S.,  7  Cranch,  570);  or  even  after  the  case  has 
been  remanded  from  the  supreme  court  (The  Caroline 
V.  U.  S.,  7  Cranch,  490;  The  Anne,  7  Cranch,  570;  The 
Mary  Ann,  8  Wheat.  380);  but  an  amendment  in  an 
admiralty  case  before  the  court  of  appeals  cannot  in- 
troduce a  new  subject  of  controversy.  (Houseman 
V.  The  North  Carolina,  15  Peters,  40.) 

Am^endment  on  removal.— This  section,  both  in  let- 
ter and  spirit,  confers  the  power  and  makes  it  the 
duty  of  courts  to  cure  defects  in  the  record  by  en- 
larging the  time  for  filing  a  transcript  on  the  removal 
of  a  cause  from  a  State  court.  (Woolridge  v.  Mc- 
Kenna,  8  Fed.  Rep.  603.)  So  an  amended  transcript 
may  be  filed  disclosing  the  requisite  citizenship. 
(Kaeizer  v.  Illinois  Cent.  R.  R.  Co.,  6  Fed.  Rep.  1;  2 
McCrary,  187.)  So  the  declaration  may  be  amended 
by  inserting  new  counts  for  the  same  cause  of  action. 
(West  V.  Smith.  101  U.  S.  263.)  A  sheriff  may  not 
amend  his  return  of  service  of  process  in  a  suit  begun 
in  the  State  court,  after  removal  (Hawkins  v.  Peirce, 
79  Fed.  Rep.  452). 

Amendment  of  verdict.— The  words  "or  course  of 
proceeding  whatever"  are  broad  enough  to  include 
verdicts  (Parks  v.  Turner,  12  How.  39);  so  if  a  ver- 
dict is  general,  it  may  be  amended  so. as  to  apply  to 


1179  PROCEDURE.  §478 

the  count  under  which  the  evidence  is  given.  (Mathe- 
son  V.  Grant,  2  How.  263;  Stockton  v.  Bishop,  4  How. 
155.)  Leave  may  be  granted  to  amend  a  verdict  in 
replevin  after  the  jury  had  returned  and  another 
cause  had  been  tried.  (Argueles  v.  Wood,  2  Cranch 
C.  C.  579;  Fed.  Gas.  No.  520.)  A  verdict  in  assumpsit 
"that  defendant  is  guilty  in  manner  and  form  as  al- 
leged" is  amendable.  (Lincoln  v.  Iron  Go.,  103  U.  S. 
412.)  On  a  stipulation  that  the  jury,  if  the  court  be 
not  in  session  when  they  agree  upon  their  verdict, 
may  sign,  seal,  and  deliver  it  to  the  officer  in  charge 
and  disperse,  the  entry  of  the  verdict  in  proper  form 
is  allowed  by  this  section.  (Koon  v.  Ins.  Go.,  104 
U.  S.  lOG;  S.  G.,  3  Morr.  Trans.  125.)  The  court  may 
enter  the  verdict  in  such  form  as  to  give  legal  effect  to 
what  the  jury  unmistaliably  found,  under  Rev.  Stat., 
sec.  954,  and  the  Practice  Act  of  Illinois.  (Koon  v. 
Phoenix  Mut.  L.  Ins.  Co.,  104  U.  S.  lOG.  The  verdict 
may  be  amended  to  correct  a  mistake,  in  the  nature 
of  a  clerical  error,  in  announcing  or  making  the  record 
of  the  verdict  actually  agreed  upon  (Pelzer  Mfg.  Go. 
V.  Hamburg-Bremen  Fire  Ins.  Go.,  71  Fed.  Rep.  82G); 
and  in  a  proceeding  in  equity  to  remedy  a  mistake 
in  announcing  the  verdict  of  a  jury  the  jurors  are 
competent  witnesses  to  prove  that  the  verdict  read 
out  in  the  court  by  their  foreman  was  not  their  ver- 
dict, but  the  result  of  an  oversight  by  him  in  making 
the  announcement  (Hamburg-Bremen  Fire  Ins.  Co.  v. 
Pelzer  Mfg.  Co.,  42  U.'  S.  App.  123;  76  Fed.  Rep. 
479). 

Amendments  after  verdict.— A  defective  pleading 
may  be  cured  after  verdict  (Garland  v.  Davis.  4  How. 
131;  Clark  v.  Sohier,  1  Wood  &  M.  308;  Fed.  Gas.  No. 
2835);  and  the  rule  that  a  defective  statement  of  a 
good  cause  of  action  is  cured  by  the  verdict  extends 
to  penal  actions  (Smith  v.  U.  S.,  1  Gall.  261;  Fed.  Gas. 
No.  13122.)    All  circumstances  necessary  in  form  or 


§  478  PROCEDURE.  1180 

in  siilistance  to  make  out  a  cause  of  action,  though 
impeifpctly  stated,  must  be  proved  at  the  trial;  hence 
the  defect  is  cured  by  the  verdict  (Pearson  v.  Bank.  1 
Petei-s.  89;  ^Nlatheson  v.  Grant,  2  How.  2(33;  Stockton 
V.  Bishop,  4  How.  155;  De  Sobry  v.  Nicholson,  3  Wall. 
420;  Corcoran  v.  Dougherty,  4  Cranch  C.  C.  205;  Fed. 
Cas.   No.    3227;     Scull    v.   Higgins,   Hemp.  90;     Fed. 
Cas.    No.  12570  a;    Stanley  v.  Whipple,    2    McLean, 
35;     Fed.     Cas.     No.     1.3286;     Kemble     v.     Lull,    3 
McLean,  272;     Fed.  Cas.  No.  7683;     Gray  v.  James, 
Peters     C.    C.    476;     Fed.    Cas.    No.    5719;     Dobson 
V.  Campbell,  1  Sum.  319;  Fed.  Cas.  No.  3945);  as  an 
allegation  under-  a  videlicet  (Ingle  v.  Collard.  1  Cranch 
C.  C.  152;  Fed.  Cas.  No.  7013;  W\)odward  v.  Brown,  13 
Petei*s,  1);  or  the  omission  to  join  a  party  as  plaintiff 
who  ought  to  have  been  joined  ((ireenleaf  v.  Schell, 
6  Blatchf.  225;  Fed.  Cas.  No.  5782);  or  to  give  the  time 
when  the  injury  was  done  (Stockton  r.  Bishop,  4  How. 
155);  or  to  aver  the  value  of  the  foreign  money  in  an 
action  on  a  bill  of  exchange  (Brown  v.  Barry,  3  Dall. 
365),  as  a  declaration  in  debt  is  in  the  debet  as  well 
as  the  detinet  (Brown  v.  Barry,  3  Dall.  208;  Gardiner 
V.  Lindo,  1  Cranch  C.  C.  78;  Fed.  Cas.  No.  5231);  but  if 
it  omits  to  show  matters  essential  to  the  jiu'isdiction 
(Smith  V.  Allyn.  1  Paine,  486;  Fed.  Cas.  No.  13065),  or 
to  state  a  cause  of  action,  it  is  not  cured  by  the  ver- 
dict  (Smith   V.   Allyn,   1    Paine,   486;    Fed.    Cas.    No. 
13065;  Henner  v.  B:ink,  !>  Wheat.  581;  McDonald  v. 
Hobson,  7  How.  745;  Washington  r.  Ogden,  1  Black. 
450);  or  if  a  libel  in  rem  does  not  show  the  commis- 
sion of  an  offense.     (See  The  Virgin,  Peters  C.  C.  7; 
Fed.  Cas.  No.  16625.)     An  alternative  allegation  in  an 
action  of  debt  for  a  penalty  can  only  be  objected  to 
by  a  demurrer,  and  is  cured  by  a  verdict.     (.lacobi  v. 
U.  S.,  1  Brock.  520;  Fed.  Cas.  No.  7157.)     An  objec- 
tion that  the  declai'ation  does  not  make  profert  of  let- 
ters of  administration  cannot  be  taken  after  verdict. 


1181  PEOCEDURE.  §  478 

(Gjirdner  v.  Lindo,  1  Cranch  C.  C.  78;  Fed.  Cas.  No. 
5231;  Math^sou  v.  Grant,  2  How.  263.)  If  a  declara- 
tiou  merely  assigns  the  uonpayraeut  of  the  penal  sum 
on  a  bond,  an  omission  to  assign  a  special  breach  of 
the  condition,  in  a  replication  to  a  plea  of  perform- 
ance, is  cured  by  a  verdict.  (Minor  v.  Mechanics" 
Bank,  1  Peters,  46.)  A  verdict  will  cure  a  discon- 
tinuance caused  by  the  failure  of  the  executor  to  ap- 
pear within  the  proper  time  after  suggestion  of  the 
death  of  the  plaintiff.  (Brent  v.  Coyle,  2  Cranch  C.  C. 
287;  Fed.  Cas.  No.  1837.)  An  allegation  under  a  vide- 
licet may  be  disregarded.  If  the  breach  alleged  is  not 
a  h^e.  ch  of  the  covenant,  error  is  not  cured  by  verdict. 
(Ingle  V.  Collard,  1  Cranch  C.  C.  152;  Fed.  Cas.  No. 
7043.)  A  plea  of  non  assumpsit,  in  an  action  on  the 
case,  is  not  cured  bj'  a  verdict.  (Garland  v.  Davis, 
4  How.  131.)  Where  two  pleas  present  substantially 
the  same  issue,  the  fact  that  an  immaterial  issue  is 
joined  on  the  replication  to  one  plea  is  no  reason  for 
arresting  a  judgment  and  awarding  a  repleader  (Ers- 
kine  v.  Hornbach,  14  Wall.  613;  I'egram  v.  U.  S.,  1 
Brock.  261;  Fed.  Cas.  No.  10906);  so  if  plaintiff  replies 
to  only  one.  (Laber  v.  Cooper,  7  Wall.  565.)  Al- 
though a  decision  sustaining  a  demurrer  to  a  plea 
is  erroneous,  yet  if  the  defense  can  be  pre- 
sented under  another  plea  filed,  the  judgment  will  be 
good.  (.Tunction  R.  Co.  v.  Bank,  12  Wall.  226.)  Where 
there  is  a  defect  in  a  pleading,  yet  if  the  issue  be  such 
as  required  proof  of  the  facts  so  defectively  stated 
oi-  omiited,  and  without  Avhich  it  is  not  to  be  presumed 
the  judge  would  have  directed  a  verdict,  such  defect 
is  cured.  (Lincoln  Township  v.  Cambria  Iron  Co., 
103  U.  S.  415.)  A  variance  between  the  writ  and  the 
declaration  as  to  the  return  day  is  amenable.  (Wilder 
v.  McCormick,  2  Blatchf.  31;  Fed.  Gas.  No.  17650.) 

Judgments  and  decrees.— .Tudgments    may  be  cor- 
rected after  the  end  of  the  term:  1.  Where  the  neces- 


§  478  PROCEDUEK.  1182 

sity  for  correction  and  the  matter  from  which  it  is  to 
be  made  appear  upon  the  face  of  the  record;  2.  Where 
justice  requires  a  correction  to  be  made  from  matters 
resting  in  the  recollection  of  the  judge  or  in  the  evi- 
dence aliunde.  In  the  former  case  notice  is  unneces- 
sary; in  the  latter  case  it  is  necessary  if  it  rests  on 
evidence  aliunde.  (O'Dell  v.  Reynolds,  37  U.  S.  App. 
447;  70  Fed.  Rep.  6"t6.)  All  judgments,  decrees,  or  or- 
ders are  under  control  of  the  court  which  pronounces 
them  during  the  term  at  which  they  are  rendered, 
and  may  be  set  aside,  vacated  or  modified.  (Bronson  v. 
Schulten,  104  U.  S.  410;  Aetna  L.  Ins.  Co.  v.  Board  of 
Commi-s.,  79  Fed.,  Rep.  575);  as  an  order  allowing  an 
appeal  when  the  appeal  has  not  been  perfected.  (Asp- 
en Mining  &  S.  Co.  v.  Billings,  150  U.  S.  31.)  But 
amendments  to  judgments  or  decrees  cannot  be  made 
except  as  to  formal  defects  (Albers  v.  Whitney, 
1  Story,  310;  Fed.  Cas.  No.  137),  where  the  entry  was 
eiToneously  made  (U.  S.  v.  Bennett,  Hoff.  281;  Fed. 
Oas.  No.  14573),  or  where  there  is  a  verbal  mistalie  of 
the  clerk  in  using  a  supei-fluity  of  words  in  entering 
judgment  (Shaw  v.  Railroad  Co.,  101  U.  S.  557;  Barnes 
V.  Lee,  1  Ci-anch  C.  C.  471;  Fed.  Cas.  No.  1018);  or 
where  by  a  misprision  of  tlie  clerk  the  judgment  had 
not  l>een  entered  accoi'ding  to  the  declaration  (Wood- 
ward V.  Brown.  13  Peters,  1),  or  where  the  clerk  had 
omitted  to  enter  judgment  allowing  interest  (Bank  v. 
Wistar.  3  Peters,  431);  or  if  a  jud.^ment  by  confession 
is  entered  without  declaration  or  rule  to  plead  (Ault 
T.  Elliot,  2  Cranch  C.  C.  372;  Fed.  Cas.  No.  655);  or  if 
made  by  only  one  of  several  joint  defendants  (Hyler 
V.  Hyatt,  2  Cranch  C.  C.  633;  Fed.  Cas.  No.  6970;  New- 
ton V.  Weaver,  2  Cranch  C.  C.  085;  Fed.  Cas.  No. 
10193;  see  Ringgold  v.  Elliot,  2  Cranch  C.  C.  462; 
Fed.  Cas.  No.  11844);  or  if  entered  in  a  wrong  case 
(Pierce  r.  Ttirner.  1  Cranch  C.  C.  433;  Fed.  Cas.  No. 
11148);  or  if  made  by  an  attorney  by  mistak'e.     (Bank 


1183  PBOCEDUKE.  §478 

r.  McKinney,  3  Cranch  C.  C.  173;  Fed.  Cas.  No.  926.) 
A  judgment  may  be  amended  by  sti-iking  out  a  part 
which  the  court  has  no  authority  to  malie  (The  Hiram 
Wood,  6  Chic.  L.  N.  135);  or  wliere  it  was  entei-ed  by 
mistalie  (U.  S.  v.  Fearson,  5  Oranch  C.  C.  95;  Fed. 
Gas.  No.  15081);  any  clerical  error  may  be  corrected 
after  the  lapse  of  the  term  (Scott  v.  Blaine,  Bald.  287; 
Fed.  Cas.  No.  12525;  Brush  v.Robbins,  3  McLean,  486; 
Fed.  Cas.  No.  2059);  as  by  maliiug  it  payable  in  gold 
or  silver  coin  (Cheang  Kee  v.  U.  S.,  3  Wall.  320).  A 
judgment  or  decree  cannot  be  stiiclien  out  for  error 
of  law  after  the  lapse  of  the  term  at  which  it  is  ren- 
dered (Brush  V.  Bobbins,  3  McLean,  486;  Fed.  Cas. 
No.  2059;  Wood  v.  Luse,  4  McLean,  254;  Fed.  Cas. 
No.  17950;  Scott  v.  Blaine,  Bald.  287;  Fed.  Cas.  No. 
12525;  Doe  v.  Waterloo  Min.  Co.,  60  Fed.  Rep.  643; 
Austin  T.  Riley,  55  Fed.  Rep.  833;  Klever  v.  Sewell, 
22  U.  S.  App.  458;  65  Fed.  Rep.  373;  Craven  v.  Cana- 
dian Pac.  Ry.  Co.,  62  Fed.  Rep.  170);  but  if  the  judge 
has  been  induced  to  enter  a  decree  by  false  repre- 
sentation as  to  its  character,  and  which  he  did  not 
intend  to  enter,  the  decree  may  be  set  aside  after  the 
term.  (U.  S.  v.  Williams,  32  U.  S.  App.  126;  67  Fed. 
Rep.  384;  Fisher  v.  Simon,  32  U.  S.  App.  132;  67  Fed. 
Rep.  387.)  But  if  irregularly  entered  it  may  be  set 
aside  (Union  Banli  v.  Crittenden,  2  Cranch  C.  C.  ZiS; 
Fed.  Oas.  No.  14354);  as  where  a  judgment  was  en- 
tered in  vacation  the  court  properly  vacated  it  at  the 
next  term  and  entered  a  new  judgment  to  the  same 
effect  (Abraham  v.  Levy,  30  U.  S.  App.  713;  72  Fed. 
Rep.  124);  or  for  a  mistalie  in  the  assessment  of  dam- 
ages (Crooks  V.  Maxwell,  6  Blatchf.  468;  Fed.  Cas. 
No.  3415);  or  if  coinsidered  as  a  nullity.  (Wood 
V.  Luse,  4  McLean,  254;  Fed.  Cas.  No.  17950; 
Harris  v.  Hardeman,  14  How.  334.)  Though  the 
court  cannot  change  the  essential  parts  of  a  de- 
cree   after    the    term   at    wliich   it  is   entered,    yet 


§  478  PKOCEDUBE.  118i 

it  may  subsequently  amend  the  deci'ee  as  to  the 
mode  of  execution,  manner  of  sale,  time  of  publica- 
tion, and  distribution  of  pi'oceeds  (Turner  v.  I.  B.  & 
W.  R.  Co.,  8  Biss.  380;  Fed.  Cas.  No.  14259);  but  aoi  in- 
terlocutory decree  is  always  open  to  amendment  and 
correction.  (De  Flovez  v.  Reynolds,  8  Fed.  Rep.  434; 
17  Blatchf.  436.)  The  rule  that  a  cause  may  not  be 
reheard  after  the  term  in  which  it  was  oi'iginally  de- 
cided does  not  affect  a  proceeding  in  another  cause 
to  review  the  original  suit.  (Jaclcsou  v.  Muuks,  58 
Fed.  Rep.  59(5.)  Where  an  order  has  been  entered  that 
the  bill  be  talvcn  pro  coufesso,  defendant,  even  if  he 
has  entered  an  appearance,  is  not  entitled  to  notice 
of  subsequent  application  for  final  decree,  when  such 
application  is  made  in  open  court.  (Austin  v.  Riley, 
55  Ved.  Rep.  833.)  The  power  of  amendment  after 
term  does  not  extend  to  the  coiTection  of  judicial  er- 
rors. (Elder  r.  Richmond  G.  &  S.  M.  Co.,  19  U.  S. 
App.  IIS;  58  Fed.  Rep.  53t).) 

On  error  or  appeal.— An  amendment  may  be  made 
in  the  appellate  tribunal  by  agreement  of  parties 
(Fletcher  v.  Peck,  6  Cranch,  137;  Matheson  v.  Grant, 
2  How.  2G3;  Anonymous,  1  Gall.  25;  Fed.  Cas.  No.  444; 
Kennedy  v.  Bank,  8  How.  .j8(j);  but  not  so  as  to  in- 
troduce a  new  controversy.  (The  North  Carolina,  15 
Peters,  50;  The  John  Jay,  3  Blatchf.  U8;  Fed.  Cas.  No. 
7352.)  So  if  the  record  does  not  contain  the  proper 
allegation  of  eitizeuship  it  may,  be  amended.  (Iven- 
nedy  v.  Bank,  8  How.  ti07.}  On  reversing  a  judgment 
the  appellate  court  will  not  direct  the  lower  court  to 
allow  the  proceedings  to  be  amended  (Sheehy  v.Mand- 
eville,  6  Cranch,  207,  note);  so  as  to  the  allowance  of 
a  repleader;  but  it  may  remand  the  cause  that  the 
pleading  may  be  amended.  (Garland  v.  Davis,  4  How. 
53.)  The  power  over  mere  matters  of  form  extends 
to  the  appellate  court,  where  the  defects  are  not  to  be 


i 


i  185  PROCEDUBE.  §  478 

regarded  as  matters  of  error  (Smith  v.  Allyn,  1  Paine, 
456;  Fed.  Gas.  No.  130G4);  such  defects  being  disi-e- 
garded  (Stockton  v.  Bishop,  4  How.  155);  so  of  an 
Immaterial  allegation  under  a  videlicet  (Steinham  v. 
U.  S.,  2  Paine,  16S;  Fed.  Gas.  No.  13355;  U.  S.  t.  Bum- 
ham,  1  Mason,  57);  or  where  there  is  a.  formal  sub- 
mission (Banli  V.  Guttschliclv,  14  Peters,  19);  or  a  de- 
fective name  (Chittenden  v.  Davis,  Hemp.  96;  Fed. 
Cas.  No.  3393  b;  Conrad  v.  Griffey,  11  How.  480); 
OT  a  variance  between  averments  and  findings  (Rail- 
road Co,  V.  Lindsay,  4  Wall.  650);  or  an  error  on 
trying  issues  out  of  their  order  (Townsend  v. 
Jemison,  7  How.  706;  Morsell  v.  Hall,  13  How. 
212;  or  a  formal  defect  in  the  verdict  if  it  is 
otherwise  sufficient  to  sustain  the  judgment  (Downey 
V.  Hicks,  14  How.  240);  or  a  general  verdict  on  dis- 
tinct issues  (Roach  v.  Hulings,  16  Peters,  319);  or 
where  the  verdict  and  judgment  are  only  on  one  de- 
mise out  of  several.  (Van  Ness  v.  Bank,  13  Peters, 
17.)  So  if  a  declaration  contains  a  special  count,  and 
the  common  counts,  judgment  may  be  sustained  on 
the  common  counts  (Bank  v.  Moss,  6  How.  31);  or 
where  there  is  an  omission  to  join  issue  on  one  out 
of  two  avowals  in  replevin  (Dermott  v.  Wallach,  1 
Black,  96);  or  where  there  is  an  omission  of  a  similiter 
(Dermott  v.  Wallach,  1  Black,  90);  or  the  omission  to 
obtain  leave  to  file  an  amended  bill,  or  to  file  a  repli- 
cation. (Clements  v.  Moore,  6  Wall.  299.)  An  omis- 
sion on  an  appeal  does  not  require  the  dismissal  of 
the  appeal,  but  the  court  may  aid  the  appeal  on  terms. 
(Dayton  v.  Lash,  94  U.  S.  112;  see  Vansant  v.  Gas 
Light  Co.,  99  U.  S.  213.)  A  party  will  be  allowed  to 
enter  his  remittitur  in  the  supreme  court  in  further- 
ance of  justice,  where  it  appears  that  one  of  the  bills 
sued  on  had  been  omitted  to  be  described  in  the  orig- 
inal declai  ation.  The  appellate  court  may  correct  an 
error  in  strikiug  out  defendant's  pleading  which  con- 


§478  PROCEDURE.  1186 

stitutes  a  ground  of  defense  (Hozey  v.  Buchanan,  16 
Peters,  2iri.i;  or  may  permit  tlie  addition  of  counts 
under  the  statute  in  an  action  for  a  forfeiture  (U.  S. 
V.  Whiskey,  11  Int.  Kev.  Rec.  109;  Fed.  Cas.  No. 
16f>71);  or  allow  amendments  so  as  to  let  in  new  evi- 
dence or  grounds  of  defense  in  the  circuit  court  in 
an  admiralty  case.  (Keppert  v.  Robinson,  Taney, 
492;  Fed.  Cas.  No.  11703.)  The  appellate  court  may 
allow  an  amendment,  although  it  concludes  against 
the  form  of  the  statute  in  an  offense  created  by  a 
single  statute.  (Kenricks  v.  U.  S.,  1  Gall.  268;  Fed. 
Cas.  No.  7713.)  After  a  writ  of  eiTor  the  court  will 
not  grant  leare  to  amend  in  a  matter  of  substance. 
(The  Philadelphia n,  21  U.  S.  App.  90;  60  Fed.  Kep. 
423;  Marsteller  v.  McClean,  2  Cranch  C.  C.  8;  Ftni. 
Cas.  No.  9140.)  If  a  declaration  in  debt  for  a  penalty 
does  not  conclude  against  the  form  of  the  statute,  it 
is  bad  on  writ  of  ei-ror.  (Smith  v.  U.  S.,  1  Gall.  261; 
Fed.  Cas.  No.  13122.)  The  court  will  not  set  aside  at 
a  subsequent  term  the  order  of  dismissal,  and  grant 
leave  to  file  the  record  and  docket  the  case.  (Selma 
&  Mer.  R.  R.  Co.  v.  Louisiana  Nat.  Bank,  94  U.  S.  253.) 
So  the  court  denied  the  allowance  of  an  amendment 
making  a  new  party  where  the  question  made  by  the 
assignment  of  error  had  been  settled  by  repeated  de- 
cisions. (Pearson  v.  Yawdell.  95  U.  S.  294.)  The 
court  refuses  to  consider  an  amended  bill  which  does 
not  appear  to  have  been  filed  by  leave  of  court  (Terry 
v.  McLure,  103  U.  S.  442;  Godfrey  v.  Terry,  97  U.  S. 
171.)  If  a  party  omitted  to  file  a  replication  in  a 
special  plea,  he  may  be  allowed  to  file  it  nunc  pro 
tunc,  although  the  case  is  on  appeal.  (Wilcox  v. 
U.  S..  6  Ct.  of  Ol.  78.) 

Amendment  of  record.— The  courts  may  by  nunc 
pro  tunc  orders  supply  omissions  in  the  record  of 
what  was  actually  done,  but  which  was  not  entered 


11S7  PROCEDURE.  §476 

on  the  record,  by  reason  of  mistake  or  neglect;  but 
they  cannot  thereby  modify  ordere  previously  made, 
or  make  an  order  which  they  intended  to  make  at  a 
previous  time,  but  did  not  in  fact  make,  so  as  to  bind 
the  parties  as  of  the  date  to  which  the  order  relates; 
and  especially  is  this  so  in  matters  I'elating  to  crim- 
inal proceedings.  (Ex  parte  Buskirk,  25  U.  S.  App. 
613;  72  Fed.  Eep.  14.)  A  clerical  error  in  any  part  of 
the  record  may  be  amended.  (Doane  v.  Glenn,  1  Colo. 
454;  Fidelity  Ins.  Co.  v.  Roanoke  Iron  Co.,  84  Fed. 
Rep.  744;  Cobb  v.  Ho  ward,  10  N.Y.Leg.  Obs.  353;  Fed. 
Cas.  No.  2025),  even  after  lapse  of  the  term  (Doane  v. 
Glenn,  1  Colo.  454);  as  a  mistake  in  entering  verdict 
on  the  merits  (Tomes  v.  Redfleld,  7  Blatchf.  139;  Fed. 
Cas.  No.  14085);  or  on  entering  judgment  (Cromwell 
V.  Bank.  2  Wall.  Jr.  570;  Fed.  Cas.  No.  3409;  Coelle  v. 
Lockhead,  Hemp.  194;  Fed.  Cas.  No.  2943  a);  or  the 
omission  to  enter  an  order  (U.  S.  v.  Smith,  1  Cranch 
C.  C.  127;  Fed.  Cas.  No.  16324),  as  for  a  majidamus 
(Supervisors  v.  Duraut,  9  Wall.  736),  or  the  allowance 
of  time  to  file  exceptions.  (Doane  v.  Glenn,  1  Colo. 
454.)  A  mistake  in  an  entry  or  a  misprision  may  be 
stricken  out  at  a  subsequent  term  (Shoppard  v.  Wil- 
son, 6  How.  260);  but  a  mistake  in  the  docket  that 
the  judgment  is  for  the  use  of  another  cannot  be 
stricken  out  after  lapse  of  the  term.  (Bradley  v.  El- 
iot, 5  Cranch  C.  C.  293;  Fed.  Cas.  No.  1778.)  A  mis- 
take in  the  name  of  defendant  in  a  commission  may 
be  amended  (Boone  v.  Janney,  2  Cranch  C.  C.  312; 
Fed.  Cas.  No.  1642):  but  a  mistake  in  the  name  of  the 
plaintiff  cannot  be  amended  where  the  record  show.% 
matter  by  which  it  can  be  amended.  (Albers  v.  Whit- 
ney, 1  StoiT,  310;  Fed.  Cas.  No.  137.)  A  wrong  title 
inserted  on  a  commission  may  be  amended  (Keene 
V.  Meade.  3  Peters,  1);  or  a  defect  in  an  affidavit  to 
an  account  filed  with  the  declaration.  (Tilley  v. 
Tharp,  3  Cranch  C.  C.  290;  Fed.  Cas.  No.  14047.     If 


§  479  PROCEDURE.  118S 

important  to  give  consistency  to  the  minutes  and  ren- 
der the  ultimate  action  of  the  court  connect,  amend- 
ments may  be  allowed.  (Amer.  Ins.  etc.  Co.  v.  John- 
son. Blatchf.  &  II.  9;  Fed.  Oas.  No.  303;  The  Martha. 
1  Blatchf.  &  H.  151;  Fed.  Cas.  No.  9144;  Nevitt  v. 
Clarke,  Olcott.  316;  Fed,  Cas.  No.  10138.)  A  material 
amendment  of  the  record  cannot  be  made  aftea-  wi'lt 
of  error  bixtught.  (U.  S.  v.  Hooe,  1  Cranch  C.  C.  116; 
Fed.  Cas.  No.  15386;  Michigan  Ins.  Bank  v.  Eldred, 
143  U.  S.  293.)  A  writ  of  error  is  amendable  (Course 
V.  Stead,  4  Dail.  22)  by  filing  a  blank  left  for  the 
return  day.  (Mossman  v.  Higginson,  4  Dail.  12.)  So 
a  clerical  mistake  may  be  amended  by  the  citation. 
(McVeigh  v.  U.  S.,  8  Wall.  640.)  A  bill  of  exceptions 
may  be  amended  during  the  term.  (Walton  v.  U.  S.. 
9  Wheat.  651.) 

§  479.  Death  of  parties. — "When  either  of  the 
parties,  whether  plaintitf,  petitioner,  or  defendant, 
in  any  suit  in  any  court  of  the  United  States,  dies 
before  final  judgment,  the  executor  or  administra- 
tor of  such  deceased  party  may,  in  case  the  cause 
of  action  survives  by  law,  prosecute  or  defend  any 
such  suit  to  filial  judgment.  The  defendant  shall 
answer  accordingly;  and  the  court  shall  hear  and 
determine  the  cause  and  render  judgment  for  or 
against  the  executor  or  administrator,  as  the 
case  may  require.  And  if  such  executor  or  ad- 
ministrator, having  been  duly  served  with  a  scire 
facias  from  the  ollice  of  the  clerk  of  the  court 
where  the  suit  is  depending,  twenty  days  before- 
hand, neglects  or  refuses  to  become  party  to  the 
suit,  the  court  may  render  judgment  against  the 
estate  of  the  deceased  part}',  in  tlie  same  manner  as 
if   the  executor   or  administrator   had  voluntarily 


1189  PROCEDURE,  S  480 

made  himself  a  party.  The  executor  or  adminis- 
trator who  becomes  a  party  as  aforesaid  shall,  upon 
motion  to  the  court,  be  entitled  to  a  continuance 
of  the  suit  until  the  next  term  of  said  court.  (Rev. 
Stats,  sec.  955.) 

§  480.  Revivor  on  death  of  party. — That  when- 
ever either  party  to  a  final  judgment  or  decree 
which  has  been  or  shall  be  rendered  in  any  circuit 
court  has  died  or  shall  die  before  the  time  allowed 
for  taking  an  appeal  or  bringing  a  writ  of  error 
has  expired,  it  shall  not  be  necessary  to  revive  the 
suit  by  any  formal  proceedings  aforesaid.  The 
representative  of  such  deceased  party  may  file  in 
the  office  of  the  clerk  of  such  circuit  court  a  duly 
certified  copy  of  his  appointment,  and  thereupon 
may  enter  an  appeal  or  bring  writ  of  error  as  the 
party  he  represents  might  have  done.  If  the  party 
in  whose  favor  such  judgment  or  decree  is  rendered 
has  died  before  appeal  taken  or  writ  of  error 
brought,  notice  to  his  representatives  shall  be  given 
from  the  supreme  court,  as  provided  in  case  of  the 
death  of  a  party  after  appeal  taken  or  writ  of  error 
brought.  (18  U.  S.  Stats.  473;  1  Sup.  Eev.  Stats. 
177.) 

Revivor  on  death  of  party.— The  common-law  rule 
that  qui  tarn  actions  on  penal  statutes  do  not  survive 
prevails  in  the  Federal  courts  as  to  actions  on  penal 
statutes  of  the  United  States,  even  in  States  where 
the  statutes  of  the  State  allow  suits  on  State  peual 
statutes  after  the  death  of  the  offender.  (Schreiber  v. 
Sharpless,  110  U.  S.  76.)  The  survivability  of  a  right 
of  action  is  governed  by  the  local  law.  (Warren  v. 
Fed.  Proc— 100. 


§480  PBOCEDUBB.  1190 

Fui-stenheim,  35  Fed.  Rep.  (i91.)  In  case  of  injuries 
causing  death  a  liiiht  of  action  survives.  (Rev.  Stats., 
sees.  522.5,  522lj;  St.  Louis  etc.  R.  Ck».  v.  McBride,  141 
U.  S.  127.) 

Revival  of  suit.— This  section  saves  every  action 
from  abatement  by  deatli  of  the  parties  where  the 
cause  of  action  sui-vives,  and  the  survival  of  the  cause 
must    depend    on    the  local  law.     (Trigg  v.  Conway, 
Hemp.  711;  Fed.  Cas.  No.  14173;  Hatfield  v.  Bushuell, 
1  Blatchf.  393;  Fed.  Cas.  No.  6211.)     It  is  confined  to 
personal  actions,  as  the  power  to  prosecute  or  defend 
is  not  given  to  the  heir  or  devisee;  so  a  real  action 
abates  by  death,  and  cannot  be  revived  against  the 
heir.     (Green  v.  Watkins,  6  Wheat.  280;  Maclier  v. 
Thomas,  7  Wheat.  530.)     The  revivor  of  the  suit  by  or 
against  the  representative  of  deceased  is  a  matter  of 
right,  and  is  a  mere  continuation  of  the  original  suit, 
without  distinction  as  to  citizenship  of  such  repre- 
sentative (Clarlie  v.  Matliewson,  12  Pet.  1(>4);  but  this 
section  does  not  relate  to  or  affect  suits  in  admiralty. 
(The  James  A.  Wright,  10  Blatchf.  100;  Fed.  Cas.  No. 
7191;  but  see  The  Norway,  1  Ben.  493;  Fed.  Cas.  No. 
10357.)    The  mode  of  continuing  a  suit  in  the  name 
of  the  executor  or  administrator  is  a  substitute  for  the 
continuance  by  Journey's  account.     (Richards  v.  Md. 
Ins.  Co.,  8  Cranch,  84.)     If  complainant  died  before 
entry  of  deci'ee  from  Avhich  an  appeal  was  taken,  it 
is  no  gi-ouud  for  abating  the  suit  after  return  of  the 
mandate.     (Story  v.  Livingston,  13  Pet.  359.)     In  aU 
cases  of  the  death  of  a  party  before  fimil  judgment 
the  proceedings  are  to  be  exactly  a.s  if  the  executor 
or  administrator  were  a  voluntai-y  party  to  the  suit. 
(Hatch  V.  Eustis,  1  Gall.  160;  Fed.  Cas.  No.  6207.)     He 
may  be  made  a  party  on  liis  own  motion  without  issu- 
ing a  scire  facias  (Wilson  v.  Codman,  3  Cranch,  193; 
Griswold  v.  Hill,  1  Paine,  483;  Fed.  Cas.  No.  5^34); 
but  he  must  show  that  he  is  executor,  s^nd  produce  his 


1191  PEOCEDUEE.  §  480 

letters  testamentary  if  required  by  the  adverse  party. 
(Wilson  V.  Codman,  3  Crancb,  193.)  If  he  voluntarily 
makes  himself  a  party,  the  adverse  pai-ty  is  not  enti- 
tled to  a  continuance.  (Wilson  v.  Codman,  3  Cranch, 
193;  Griswold  v.  Hill,  1  Paine,  483;  Fed.  Cas.  No. 
5834.)  The  appearance  of  the  heir  under  the  rule  to 
show  cause  why  a  real  action  should  not  be  revived 
against  him  will  not  cure  the  error  of  such  revivor. 
(Macker  v.  Thomas,  7  Wheat.  530.)  Upon  a  bill  to 
revive,  the  sole  questions  are  as  to  the  competency  of 
the  parties  and  the  correctness  of  the  frame  of  the 
bill.  (Bettes  v.  Dana,  2  Sum.  383;  Fed.  Oas.  No.  1368.) 
It  cannot  be  brought  against  an  administrator  of  a 
defendant  who  neither  appeared  nor  was  served  with 
process  (U.  S.  v.  Fields,  4  Blatchf.  326;  Fed.  Cas.  No. 
15089),  nor  against  one  in  a  State  other  than  that 
fi-om  which  their  authority  proceeds.  (Melius  v. 
Thompson,  1  Cliff.  125;  Fed.  Cas.  No.  9405.)  The 
abatement  of  a  scire  facias  in  the  name  of  a  feme 
sole  as  administratrix  who  afterward  man-ies  is  no 
bar  to  a  scire  facias  in  the  name  of  husband  and  wife. 
(McCoul  V.  Lekamp,  2  Wheat.  111.)  A  general  denial 
of  each  allegation  of  a  writ  is  a  form  of  defense  not 
permitted  in  scire  facias  to  revive  a  judgment  (Won- 
derly  v.  Lafayette  County,  77  Fed.  Rep.  665.)  The 
proper  method  of  reviving  a  suit  in  equity  to  recover 
real  estate,  which  suit  has  abated  because  of  death  of 
a  party  plaintiff,  is  by  a  supplemental  bill  (Currell  v. 
Villars,  72  Fed.  Rep.  330.)  The  fact  that  one  is  suing 
in  a  State  court  upon  a  judgment  of  a  Federal  court 
will  not  prevent  him  from-  proceeding  at  the  same 
time  in  the  Federal  court  to  revive  the  judgment  by 
scire  facias.  (Wonderly  v.  Lafayette  County,  77  Fed. 
Rep.  665.)  A  proceeding  to  revive  a  judgment  being 
a  collateral  proceeding,  no  error  in  such  judgment 
is  available  against  it  if  the  court  which  rendered  it 
was  duly  organized  and  had  jurisdiction  of  the  subject 


^§  481-482  PEOCEDURK.  1192 

matter  and  of  the  parties.    (Foster  v.  Crawford,  80 
Fed.  Rep.  991.) 

§  481.  Whenoneof  several  plaintiffs  or  defend- 
ants dies. — If  there  are  two  or  more  plaintiffs  or 
defendants,  in  a  suit  where  the  cause  of  action  sur- 
vives to  the  sui-viving  plaintiff  or  against  tlie  sur- 
viving defendant,  and  one  or  more  of  them  dies, 
the  writ  or  action  shall  not  be  thereby  abated;  but, 
such  death  being  suggested  upon  the  record,  the 
action  shall  proceed  at  the  suit  of  the  surviving 
plaintiff  against  the  surviving  defendant.  (Rev. 
Stats,  sec.  956.) 

§  482.  Delinquents  for  public  money. — When 
suit  is  brought  by  the  United  States  against  any 
revenue  oflicer  or  other  person  accountable  for 
public  money,  who  neglects  or  refuses  to  pay  into 
the  treasury  the  sum  or  balance  reported  to  be 
due  to  the  United  States,  upon  the  adjustment 
of  his  account  it  shall  be  the  duty  of  the  court  to 
grant  judgment  at  the  return  term,  upon  motion, 
unless  the  defendant,  in  open  court  (the  United 
States  attorney  being  present),  makes  and  sub- 
scribes an  oath  that  he  is  equitably  entitled  to 
credits  which  had  been,  previous  to  the  commence- 
ment of  the  suit,  submitted  to  the  accounting  offi- 
cers of  the  treasury,  and  rejected,  specifying  in 
the  affidavit  each  particular  claim  so  rejected,  and 
that  he  cannot  then  safely  come  to  trial.  If  the 
court,  when  such  oath  is  made,  subscribed,  and 
filed,  is  thereupon  satisfied,  a  continuance  until  the 
next  succeeding  term  may  be  granted.     Such  con- 


1193  PROCEDURE.  §§483-484 

tinuance  may  also  be  granted  when  the  suit  is 
brought  upon  a  bond  or  other  sealed  instrument, 
and  the  defendant  pleads  non  est  factum,  or  makes 
a  motion  to  the  court,  verifying  such  plea  or  mo- 
'-'on  by  his  oath,  and  the  com-t  thereupon  requires 
the  production  of  the  original  bond,  contract,  or 
other  paper  certified  in  the  affidavit.  And  no  con- 
tinuance shall  be  granted  except  as  herein  pro- 
vided.   (Eev.  Stats,  sec.  957.) 

Note.— See  U.  S.  v.  Hawkins,  10  Pet.  125.  An 
officer  against  wliom  summary  proceedings  are  insti- 
tuted may  set  off  tne  fees  for  services  to  government 
rendered  by  him.  (U.  S.  v.  Mann,  2  Brock.  9;  Fed. 
Cas.  No.  15716.) 

§  483.     Judgment  for  suits  under  postal  laws. 

— In  suits  arising  under  the  postal  laws  the  court 
shall  proceed  to  trial,  and  render  judgment  at  the 
return  term;  but  whenever  service  of  process  is  not 
made  at  least  twenty  days  before  the  return  day  of 
such  term,  the  defendant  is  entitled  to  one  contin- 
uance, if,  on  his  statement,  the  court  deems  it  ex- 
pedient; and  if  he  makes  affidavit  that  he  has  a 
claim  against  the  postoffice  department,  which  has 
been  submitted  to  and  disallowed  by  the  sixth 
auditor,  specifying  such  claim  in  his  affidavit,  and 
that  he  could  not  be  prepared  for  trial  at  such 
term  for  want  of  evidence,  the  court,  if  satisfied 
thereof,  may  grant  a  continuance  until  the  next 
term.     (Eev.  Stats,  sec.  958.) 

§  484.     Judgment  for  suits  on  debentures. — In 

all  suits  for  the  recovery  of  money  upon  deben- 


§§485-486  rnocEDUBE,  1194 

tures  issued  by  the  collectors  of  customs,  under 
any  act  for  the  collection  of  duties,  it  shall  be 
the  duty  of  the  court  to  grant  judgment  at  the 
return  term,  unless  the  defendant,  in  open  court, 
exhibits  some  plea,  on  oath,  by  which  the  court  is 
satisfied  that  a  continuance  is  necessary  to  the 
attainment  of  justice;  in  which  case,  and  not  other- 
wise, a  continuance  until  the  next  term  may  be 
granted.     (Kev.  Stats,  sec.  959.) 

§  485.  Judgments  in  suits  on  bonds  for  recov- 
ery of  duties. — When  suit  is  brought  on  any  bond 
for  the  recovery  of  duties  due  to  the  United  States, 
it  shall  be  the  duty  of  the  court  to  grant  judgment 
at  the  return  term,  upon  motion,  unless  the  de- 
fendant, in  open  court  (the  United  States  attorney 
being  present),  makes  oath  that  an  error  has  been 
committed  in  the  liquidation  of  the  duties  demand- 
ed upon  such  bond,  specifying  the  errors  alleged 
to  have  been  committed,  and  that  the  same  have 
been  notified  in  writing  to  the  collector  of  the 
district  before  the  said  return  term;  whereupon  a 
continuance  may  be  granted  until  the  next  term, 
and  no  longer,  if  the  court  is  satisfied  that  such 
continuance  is  necessary  for  the  attainment  of  jus- 
tice.    (Kev.  Stats,  sec.  960.) 

Note. — Wliere  there  is  a  real  defense,  an  oppor- 
tunity to  obtain  evidence  by  a  continuance  must  be 
ffiven.     (U.  S.  v.  Phelps,  8  Peters,  700.) 

§  486.     Judgment  for  sum  due  in  equity  on 
bonds,  etc. — In  all  suits  brought  to  recover  the 
forfeiture  annexed  to  any  articles  of  agreement, 


1195  PEOCEDUEE,  §  487 

covenant,  bond,  or  other  specialty,  where  the  for- 
feiture, breach,  or  nonperformance  appears  by  the 
default  or  confession  of  the  defendant,  or  upoji 
demurrer,  the  court  shall  render  judgment  for  the 
plaintiff  to  recover  so  much  as  is  due  according  to 
equity.  And  when  the  sum  for  which  judgment 
should  be  rendered  is  uncertain,  it  shall,  if  either 
of  the  parties  request  it,  be  assessed  by  a  jury. 
(Kev.  Stats,  sec.  961.) 

Note.— This  section  is  confined  to  cases  of  default, 
confession  and  demurrer  (Farrar  v.  U.  S.,  5  Peters, 
373),  and  does  not  apply  to  cases  heard  on  agreed 
fads.  (Ives  v.  The  Merchants'  Bank,  12  How.  159.) 
Where  damages  exceed  the  penalty  of  the  bonds, 
judgment  should  be  for  the  penalty  only.  (Fai-rar  v. 
U.  S.,  5  Peters,  373.) 

§  487.  Judgment  for  duties,  etc. — In  all  suits 
by  the  United  States  for  the  recovery  of  duties 
upon  imports,  or  of  penalties  for  the  nonpayment 
thereof,  the  judgment  shall  recite  that  it  is  ren- 
dered for  duties,  and  such  judgment,  with  inter- 
est thereon  and  costs,  shall  be  payable  in  the  coin 
by  law  receivable  for  duties;  and  tlie  execution 
issued  thereon  shall  set  forth  that  the  recovery  is 
for  duties,  and  shall  require  the  marshal  to  satisfy 
the  same  in  the  coin  by  law  receivable  for  duties; 
and  in  case  of  levy  upon  and  sale  of  the  property 
of  the  judgment  debtor,  the  marshal  shall  refuse 
payment  from  any  purchaser  at  such  sale  in  any 
other  money  than  that  specified  in  the  execution. 
[See  sec.  3014.]     (Eev.  Stats,  sec.  962.) 


§§  488  491  PEOCEDUKE.  1193 

§  488.  Interest  on  bonds  for  duties. — Upon  all 
bonds  on  which  suits  are  brouglit  for  the  recovery 
of  duties,  interest  shall  be  allowed,  at  the  rate  of 
six  per  centum  a  year,  from  the  time  when  said 
balance  became  due.     (Rev.  Stats,  sec.  963.) 

§  489.  Interest  on  balances  due  postofiice  de- 
partment.— In  all  suits  for  balances  due  to  tha 
postoliice  department,  interest  thereon  shall  be 
recovered  from  the  time  of  the  default  at  the  rate 
of  six  per  centum  a  year.     (Rev.  Stats,  sec.  96-1:.) 

§  490.  Interest  on  debentures. — In  suits  upon 
debentures,  issued  by  the  collectors  of  the  customs 
under  any  act  for  the  collection  of  duties,  interest 
shall  be  allowed,  at  the  rate  of  six  per  centum  per 
annum,  from  the  time  when  such  debenture  be- 
came due  and  payable.     (Rev.  Stats,  sec.  965.) 

§  491.  Interest  on  judgments. — Interest  shall 
be  allowed  on  all  judgments  in  civil  causes  recov- 
ered in  a  circuit  or  district  court,  and  may  be  lev- 
ied by  the  marshal  under  process  of  execution  is- 
sued thereon  in  all  cases  where,  by  the  law  of  the 
State  in  which  such  court  is  held,  interest  may  be 
levied  under  process  of  execution  on  judgments 
recovered  in  the  courts  of  such  State;  and  it  shall 
be  calculated  from  the  date  of  the  judgment,  at 
such  rate  as  is  allowed  by  law  on  judgments  recov- 
ered in  the  courts  of  such  State.  (Rev.  Stats,  sec. 
966.) 

Interest.-- This  section  does  not  embrace  eases  In 
equity  nor  judgments  or  decrees  of  tlie  supremo  court. 
I'crlcius  V.  Fourniquet,  14  How.  328.)     It  does  not  ap- 


1197  PHOCEDTJEB,  g  493 

ply  to  judgments  against  the  United  States.  (U.  S. 
V.  Sherman,  98  U.  S.  505.)  The  interest  on  decrees 
is  the  same  as  that  in  the  State  courts.  (Railroad  Co. 
V.  Turrill,  101  U.  S.  836.)  A  judgment  beai's  interest 
by  force  of  law,  although  it  may  not  purport  to  carry 
interest.  (Perkins  v.  Fourulquet,  14  How.  328.)  The 
liability  of  defendant  is  not  only  for  the  amount  of 
the  judgment,  but  for  interest  on  it.  (White  v.  Ar- 
thur, 10  Fed.  Rep.  83;  20  Blatchf.  237.)  This  section 
does  not  exclude  the  idea  of  a  power  in  the  State  to 
allow  interest  on  verdicts;  it  is  a  right  of  which  the 
successful  plaintiff  cannot  be  deprived  by  removal  of 
his  case  to  a  Federal  court.  (Massachusetts  Ben. 
Assn.  V.  Miles,  137  U.  S,  689.)  Where  judgment  was 
entered  generally  for  no  definite  sum.  and  the  amount 
actually  with  interest  exceeded  five  thousand  dollara, 
this  court  has  jurisdiction.  (Massachusetts  Ben. 
Assn.  V.  Miles,  137  U.  S.  689.) 

§  492.  Judgments — Lien  and  record  of. — That 
judgments  and  decrees  rendered  in  a  circuit  or  dis- 
trict court  of  the  United  States  within  any  State 
shall  be  liens  on  property  throughout  such  State 
in  the  same  manner  and  to  the  same  extent  and 
under  the  same  conditions  only  as  if  such  judg- 
ments and  decrees  had  been  rendered  by  a  court 
of  general  jurisdiction  of  such  State;  provided,  that 
whenever  the  laws  of  any  State  require  a  judgment 
or  decree  of  a  State  court  to  be  registered,  record- 
ed, docketed,  indexed,  or  any  other  thing  to  be 
done,  in  a  particular  manner,  or  in  a  certain  office 
or  county  or  parish  in  the  State  of  Louisiana  be- 
fore a  lien  shall  attach,  this  act  shall  be  applicable 
therein  whenever,  and  only  whenever,  the  laws  of 
such  State  shall  authorize  the  judgments  and  de- 


§§  493-404  PROCEDURK  1198 

crees  of  the  United  States  courts  to  be  registered, 
recorded,  docketed,  indexed,  or  otherwise  con- 
formed to  the  rules  and  requirements  relating  to 
the  judgments  and  decrees  of  the  courts  of  the 
State.     (25  U.  S.  Stats.  357,  sec.  1.) 

§  493.  Record  in  Louisiana. — Nothing  herein 
shall  be  construed  to  require  the  docketing  of  a 
judgment  or  decree  of  a  United  States  court,  or 
the  filing  of  a  transcript  thereof,  in  any  State  office 
within  the  same  county  or  the  same  parish  in  the 
State  of  Louisiana  in  which  the  Judgment  or  de- 
cree is  rendered,  in  order  that  such  judgment  or 
decree  may  be  a  lien  on  any  property  within  such 
county,  if  the  clerk  of  the  United  States  court  be 
required  by  law  to  have  a  permanent  office  and  a 
judgment  record  open  at  all  times  for  public  in- 
spection in  such  county  or  parish.  (25  U.  S.  Stats. 
357,  sec.  3;  as  amended  28  U.  S.  Stats.  813.) 

§  494.     Effect  of   judgments   in    California. — 

The  passage  of  this  act,  to  "Create  the  United 
States  judicial  district  of  Southern  California," 
shall  not  have  the  effect  to  destroy  or  impair  the 
lien  of  any  judgment  or  decree  rendered  in  the 
circuit  or  district  court  of  the  United  States  for 
the  present  di.strict  of  California  prior  to  this  act 
taking  efTcct;  and  final  process  on  any  judgment  or 
decree  entered  in  the  circuit  or  district  court  of 
the  United  States  for  the  district  of  California,  or 
which  shall  be  entered  therein  prior  to  this  act 
taking  effect,  and  all  other  process  for  the  enforce- 
ment of  any  order  of  said  courts,  respectively,  in 


1199  PEOCEDURE.  §495 

any  cause  or  proceeding  now  pending  therein  ex- 
cept on  proceedings  removed  as  herein  provided, 
shall  be  issued  and  made  returnable  to  the  proper 
court  for  the  said  northern  district  of  California, 
and  may  be  directed  to  and  executed  by  the  mar- 
shal of  the  United  States  for  the  said  northern  dis- 
trict in  any  part  of  the  State  of 'Calif ornia.  (24 
U.  S.  Stats.  308.) 

§  495.  Judgments — Limitations. — Judgments 
and  decrees  rendered  in  a  circuit  or  district  court 
within  any  State  shall  cease  to  be  liens  on  real 
estate  or  chattels  real,  in  the  same  manner  and  at 
like  periods  as  judgments  and  decrees  of  the 
courts  of  such  State  cease,  by  law,  to  be  liens  there- 
on.    (Bev.  Stats,  sec.  967.) 

Judgment  liens.— A  State  law  which  provides  that 
a  judgment  shall  not  be  a  lien  unless  execution  be  is- 
sued thereon  within  a  certain  time  applies  to  Federal 
courts  (Sellers  v.  Corwin,  .5  Ohio,  398);  but  a  State 
law  which  allows  a  suspension  of  the  lien  on  giving 
security  on  appeal  (Myers  v.  Tyson,  13  Blatchf.  242; 
Fed.  Cas.  No.  9995),  or  Which  provides  that  a  judg- 
ment shall  not  be  a  lien  except  it  be  docketed  in 
the  county  where  the  land  lies,  does  not  apply  to 
the  Federal  courts.  (U.  S.  v.  Humphreys,  3  Hughes, 
201;  Fed.  Cas.  No.  15422.)  The  same  proceedings 
which  in  a  State  court  creates  a  lien  in  the  county 
where  judgment  is  entered  creates  it  in  the  circuit 
court  to  the  extent  of  its  jurisdiction.  (Massingill 
V.  Downs,  7  How.  760.)  The  pendency  of  a  writ  of 
error  does  not  affect  the  duration  of  the  lien.  (Chou- 
teau V.  Nuckolls,  20  Mo.  442.)  The  duration  of  a 
judgment  lien  in  a  Federal  court  is  the  same  as  that 
of  judgments  in   a  State   court.     (Chouteau  v.  Nuck- 


§  496  PROCEDURE.  1200 

oils,  20  Mo.  442.)  Although  land  is  sold  under  judg- 
ment of  a  State  court,  if  the  lien  of  judgments  of 
the  Federal  court  is  allowed  to  expire  before  the 
sales,  the  first  purchaser  obtains  the  elder  legal  title. 
(Chouteau  v.  Nucliolls,  20  Mo.  442.)  A  state  law 
cannot  have  a  retrospective  effect,  so  as  to  impair 
a  judgment  lien  of  the  Federal  court.  (Massingill 
V.  Downs,  7  How.  760;  conti-a,  Tan>loy  v.  Hamer, 
9  Smedes  &  M.  310.)  As  to  district  courts,  "decrees" 
in  this  section  applj'  to  decrees  in  admiralty  for  the 
payment  of  money.  (Ward  v.  Chamberlain,  2  Black. 
430.)  Sale  of  property  under  execution  exhausts  the 
lien  of  the  judgment  as  to  subsequent  mortgage;  and 
redemption  by  the  subsequent  lienholder  does  not 
restore  the  lien  of  the  judgment.  (Porter  r.  Pitts- 
burg Bessemer  Steel  Co.,  122  U.  S.  2G7.)  The  In- 
diana statute  authorizes  redemption  of  railix>ad  prop- 
erty from  sale  under  execution.  (Id.)  Suits  in  equity 
in  the  Federal  Courts  ai'e  not  deemed  to  be  brought 
or  commenced  imtil  the  suing  out  of  appropriate 
process  and  a  bona  fide  attempt  to  serve  it  (United 
States  V.  American  Lumber  Co.,  80  Fed.  Rep.  309). 
A  right  of  action  under  the  act  of  Mai-ch  3,  1887, 
against  the  government  under  a  contract  of  can-iage 
of  imported  goods  in  its  custody  accrues  as  soon  as 
the  money  becomes  due  without  a  prior  prest^ntatioii 
of  the  claim  to  the  executive  department  for  allow- 
ance (United  States  v.  Utz,  39  U.  S.  App.  630;  80 
Fed.  Rep.  848). 

§  496.  Recovery  of  costs. — When,  in  a  circuit 
court,  a  plaintiif  in  an  action  at  law  originally 
brought  there,  or  a  petitioner  in  equity,  other  than 
the  United  States,  recovers  less  than  the  sum  or 
value  of  five  hundred  dollars,  exclusive  of  costs, 
in  a  case  which  cannot  be  brought  there  unless  the 


1201  PKOCEDURE.  §  496 

amount  in  dispute,  exclusive  of  costs,  exceeds  said 
sum  OT  value,  or  a  libelant,  upon  liis  own  appeal, 
recovers  less  than  the  sum  or  value  of  three  hun- 
dred dollars,  exclusive  of  costs,  he  shall  not  be  al- 
lowed, but,  at  the  discretion  of  the  court,  may  be 
adjudged  to  pay  costs.     (Eev.  Stats,  sec.  968.) 

Costs.— This  section  applies  to  cases  arising  under 
the  constitution  and  laws  of  the  United  States  as 
well  as  cases  at  common  law.  (Kneass  v.  Schuylkill 
Banii,  4  Wash.  C.  C.  106;  Fed.  Cas.  No.  7876.)  If 
a  plaintiff  recover  less  than  five  hundred  dollai's, 
he  cannot  recover  costs  (Kneass  v.  Schuylkill  Bank, 
4  Wash.  C.  C.  106;  Fed.  Cas.  No.  7876;  Leeds  v. 
Cameron,  3  Sum.  488;  Fed.  Cas.  No.  8206;  Curranee 
V.  McQueen,  2  Paine,  109;  Fed.  Cas.  3488);  so  if  the 
value  of  land  recovered  is  less  than  five  hundred 
dollars  (Green  v.  Liter,  8  Cranch,  229);  but  other- 
wise in  a  case  removed  from  the  State  courts,  if  he 
would  have  been  entitled  to  costs  in  such  court 
(Field  V.  Schell,  4  Blatchf.  435;  Fed.  Cas.  No.  4771; 
Kreager  v.  Judd,  5  Fed.  Rep.  27;  Ellis  v.  Jarvis,  3 
Mason,  457;  Fed.  Cas.  No.  4403;  Scripps  v.  Camp- 
bell, 22  Int.  Eev.  Rec.  2t50;  Fed.  Cas.  No.  12562; 
Ooggill  V.  Lawrence,  2  Blatchf.  304;  Fed.  Cas.  No. 
2957.)  The  act  of  Congress  of  March  3,  1887,  raising 
the  minimum  amount  required  to  give  jm-isdiction 
to  a  circuit  court  of  the  United  States,  does  not 
by  implication  raise  to  the  same  limit  the  amount 
of  recovery  necessary  to  carry  costs  in  favor  of  plain- 
tiff, but  a  recovery  of  five  hundred  dollars  is  still 
sufficient  imder  this  section.  (Johnson  v.  Watkins,  40 
Fed.  Rep.  187.)  This  section  was  not  amended  by 
the  act  of  1887.  (Eastman  v.  SheiTy,  37  Fed.  Rep. 
844;  followed  in  Johnson  v.  Watkins,  40  Fed.  Rep. 
187.)  In  a  suit  against  three  railroad  companies,  it 
Is  too  late  after  judgment  to  make  the  objection  that 
Fed.  Proc— 101. 


§497  PROCEDURE.  1202 

the  suits  should  have  been  separately  brought,  or  to 
escape  costs  caused  by  defendant's  act  in  separating 
the  verdict  and  judgment  for  their  own  benefit,  un- 
der Thompson's  Code  (Tenn.),  sees.  2973-2975.  Sec- 
tion 9()8,  supra,  does  not  apply  to  such  a  case.  (John- 
son V.  Mississippi  &  T.  K.  Co.,  31  Fed.  Rep.  551.) 
This  section  changes  the  rule  established  by  the  stat- 
ute of  Gloucester,  that  the  prevailing  party  should 
recover  his  expenses  as  costs  from  his  adversary; 
and  where  the  recovery  is  less  than  five  hundred  dol- 
lars no  costs  are  allowed,  and  the  common  law  is 
in  effect  restored  in  such  cases.  (Gibson  v.  Memphis 
&  C.  R.  Co.,  31  Fed.  Rep.  553.) 

§  497.  Cases  under  revenue  laws— Collectors. 
— It  shall  be  the  duty  of  every  collector  of  internal 
revenue  to  report  within  ten  da3^s  to  the  district 
attorney  of  the  district  in  which  any  fine,  penalty, 
or  forfeiture  may  be  incurred  for  the  violation  of 
any  law  of  the  United  States  relating  to  the  rev- 
enue, a  statement  of  all  the  facts  and  circumstances 
of  the  case  within  his  knowledge,  together  witli 
the  names  of  the  M'itnesses,  and  which  may  come 
to  his  knowledge  from  time  to  time,  stating  the 
provisions  of  the  law  believed  to  be  violated,  and 
on  which  a  reliance  may  be  had  for  condemnation 
or  conviction;  and  if  any  collector  shall  in  any  case 
fail  to  report  to  the  proper  district  attorney  as 
prescribed  in  this  section,  his  right  to  any  com- 
pensation, benefit,  or  allowance  in  such  case  shall 
bo  forfeited  to  the  United  States,  and  the  same 
may,  in  the  discretion  of  the  secretary  of  the  treas- 
ury, be  awarded  to  sucb  persons  as  may  make  com- 
plaint and  prosecute  tlie  same  to  judgment  or  con- 
viction.   (Rev.  Stats,  sec.  3164.) 


I 


1203  PKOCEDURE.  §§  498-499 

§  498.     Compromises    in   revenue    cases. — The 

commissioner  of  internal  revenue,  with  the  advice 
and  consent  of  the  secretary  of  the  treasury,  may 
compromise  any  civil  or  criminal  case  arising  un- 
der the  internal  revenue  laws  instead  of  com- 
mencing suit  thereon;  and,  with  the  advice  and 
consent  of  the  said  secretary  and  the  recommenda- 
tion of  the  attorney  general,  he  may  compromise 
any  such  case  after  a  suit  thereon  has  been  com- 
menced. Whenever  a  compromise  is  made  in  any 
case  there  shall  be  placed  on  file  in  the  office  of  the 
commissioner  the  opinion  of  the  solicitor  of  in- 
ternal revenue,  or  of  the  officer  acting  as  such, 
with  his  reasons  therefor,  with  a  statement  of  the 
amount  of  tax  assessed,  the  amount  of  additional 
tax  or  penalty  imposed  by  law  in  consequence  of 
the  neglect  or  delinquency  of  the  person  against 
whom  the  tax  is  assessed,  and  the  amount  actually 
paid  in  accordance  with  the  terms  of  the  compro- 
mise.    (Kev.  Stats,  sec.  3229.) 

§  499.  Remission  of  fines. — The  secretary  of 
the  treasury  is  authorized  to  prescribe  such  rules 
and  modes  of  proceeding  to  ascertain  the  facts 
upon  which  an  application  for  remission  of  a  fine, 
penalty,  or  forfeiture  is  founded,  as  he  deems  prop- 
er, and,  upon  ascertaining  them,  to  remit  the  fine, 
penalty,  or  forfeiture,  if  in  his  opinion  it  was  in- 
curred without  willful  negligence  or  fraud,  in 
either  of  the  following  cases: 

First.  If  the  fine,  penalty,  or  forfeiture  was  im- 
posed under  authority  of  any  revenue  law,  and  the 
amount  does  not  exceed  one  thousand  dollars. 


§§  500-501  PROCEDUBE.  1204 

Second.  Where  the  ease  occurred  within  either 
of  the  collection  districts  in  the  states  of  California 
or  Oregon. 

Third.  If  the  fine,  penalty,  or  forfeiture  was 
imposed  under  authority  of  any  provisions  of  law 
relating  to  the  importation  of  merchandise  from 
foreign  contiguous  territory,  or  relating  to  mani- 
fests for  vessels  enrolled  or  licensed  to  carry  on 
the  coasting  trade  on  the  northern,  northeastern, 
and  northwestern  frontiers. 

Fourth.     Repealed. 

Fifth.  If  the  fine,  penalty,  or  forfeiture  was 
imposed  hy  authority  of  any  provisions  of  law  for 
levying  or  collecting  any  duties  or  taxes,  or  relat- 
ing to  registering,  recording,  enrolling,  or  licens- 
ing vessels,  and  the  case  arose  within  the  collection 
district  of  Alaska,  or  was  imposed  by  virtue  of  any 
provisions  of  law  relating  to  fur  seals  upon  the 
islands  of  Saint  Paul  and  Saint  George.  (Rev. 
Stats,  sec.  5293.) 

§  500.  Discontinuances. — ISTo  discontinuance 
or  nolle  prosequi  of  any  prosecution  under  section 
three  thousand  two  hundred  and  fifty-seven  shall 
be  allowed  without  the  permission  in  writing  of 
the  secretary  of  the  treasury  and  the  attorney  gen- 
eral.    (Rev.  Stats,  sec.  3230.) 

§  501.  Continuances. — It  shall  be  lawful  for 
any  court  in  which  any  suit  or  criminal  proceed- 
ing arising  under  the  internal  revenue  laws  may  be 
pending  to  continue  the  same  at  any  stage  thereof, 
for  [rood  cause  shown  on  motion  by  the  district 
attorney.     (Rev.  Stats,  sec.  3231.) 


I 


1205  PROCEDURE.  §§  502-503 

§  502.    Costs  in  revenue  suits  upon  information. 

— When  a  suit  for  the  recovery  of  any  penalty 
or  forfeiture  accruing  under  any  law  providing 
internal  revenue  is  brought  upon  information  re- 
ceived from  any  person  other  than  a  collector,  dep- 
uty collector^  or  inspector  of  internal  revenue,  the 
United  States  shall  not  be  subject  to  any  costs  of 
suit.     (Rev.  Stats,  sec.  969.) 

§  503.     Costs,  when  reasonable  cause  of  seizure. 

— When,  in  any  prosecution  commenced  on  ac- 
count of  the  seizure  of  any  vessel,  goods,  wares,  or 
merchandise,  made  by  any  collector  or  other  offi- 
cer, under  any  act  of  Congress  authorizing  such 
seizure.  Judgment  is  rendered  for  the  claimant, 
but  it  appears  to  the  court  that  there  was  reason- 
able cause  of  seizure,  the  court  shall  cause  a  proper 
certificate  thereof  to  be  entered,  and  the  claimant 
shall  not,  in  such  case,  be  entitled  to  costs,  nor 
shall  the  person  who  made  the  seizure,  nor  tbe 
prosecutor,  be  liable  to  suit  or  judgment  on  ac- 
count of  such  suit  or  prosecution;  provided,  that 
the  vessel,  goods,  wares,  or  merchandise,  be,  after 
judgment,  forthwith  returned  to  such  claimant  or 
his  agent.     (Eev.  Stats,  sec.  970.) 

Probable  cause.— Probable  cause  imports  a  seizure 
made  vinder  circumstances  which  wan-ant  suspicion. 
(Laclte  v.U.  S.,  7  Cranch.  3.39;  U.  S.  v.  Gay,  2  Gall.  .359; 
Fed.  Cas.  No.  15193;  The  George,  1  Mason.  24;  Fed. 
Cas.  No.  5328;  United  States  v.  1^  Jeune  Eugenie,  2 
Mason,  409;  Fed.  Cas.  No.  15551;  Averill  v.  Smith,  17 
Wall.  82;  Shattuck  v.  Maley,  1  Wash.  G.  C.  245;  Fed. 
Gas.  No.  12714;  Tnited  States  v.  One  Sorrel  Horse,  22 
Vt.  656;  United  States  r.  The  Reindeer,  14  Law  Rep. 


§  503  PROCEDURE.  1206 

235;  Fed.Cas.  No.  1G145;  The  La  Manche,  25  Law  Rep. 
585;  Fed.  C'as.  No.  8004.)  A  certificate  may  be  given 
where  there  is  a  doubt  as  to  the  true  coii.«;truction  of  a 
statute  (U.  S.  v.  K'iddle,  5  Craiich,  311;  The  Paulina  v. 
U.  S.,  7  Cranch,  52;  Averill  v.  Suilth,  17  Wall.  82;  The 
Friendship,  1  Gall.  Ill;  Fed.  Gas.  No.  5125;  United 
States  v.  The  Reindeer,  14  Law  Rep.  235;  Fed.  Gas. 
No.  16145);  it  is  never  given  in  the  admiralty  except 
in  cases  under  the  revenue  and  navigation  acts.  (The 
Marianna  Flora,  11  Wheat.  1;  The  Palmyra,  12 
Wheat.  1.)  If  given  the  claimant  is  not  entitled  to 
costs  (In  re  Stover,  1  Gurt.  93;  Fed.  Gas.  No.  1350G); 
and  when  given  it  is  a  bar  to  an  action  for  damages 
for  seizure.  (Gels-ton  v.  Hoyt,  3  Wheat,  24G;  Averill 
r.  Smith.  17  Wall.  82.)  But  Avhere  the  collector  does 
not  apply  for  the  certificate  until  after  he  has 
been  sued  he  may  be  required  to  pay  the 
costs.  (United  States  v.  The  Recjorder,  2  Blatchf.  119; 
Fed.  Gas.  No.  1(J130);  and  if  the  goods  are  in  his 
hands  it  is  his  duty  to  surrender  them  as  soon  as  they 
are  acquitted.  (Averill  v.  Smith,  17  Wall.  82.)  If 
there  is  a  decree  of  acquittal,  and  a  denial  of  the 
certificate,  the  seizure  is  tortious,  and  the  owner  is 
entitled  to  full  damages  (Gelston  v.  Hoyt,  3  Wheat. 
246;  The  Appollou,  9  Wheat.  302):  but  the  actions  to 
recover  damages  cannot  be  commenced  while  pro- 
ceedings to  enforce  the  forfeiture  are  pending.  (Gel- 
ston V.  Hoyt,  3  Wheat.  246;  Averill  v.  Smith.  17  Wall. 
82.)  The  claimant  must  move  the  court  for  the  nec- 
essary orders  to  cause  the  property  or  its  proceeds 
to  be  returned  to  the  owner.  (Averill  v.  Smith,  17 
Wall.  82.)  The  opinion  of  the  attorney-general,  and 
the  instruction  of  the  secretary  of  the  treasury  based 
thereon,  constitute  reasonable  cause  for  seizure.  (The 
Recorder,  2  Blatchf.  119;  Fed.  Gas.  No.  16130.)  If 
the  goods  are  taken  from  the  collector  the  ceptifl- 
csite  is  a  protection,  although  the  maj-shal  omits  to 


1207  PKOCEDURE.  §  504 

return  the  goods  to  the  owner.  (Averill  v.  Smith,  17 
Wall.  82.)  And  where  restitution  is  accepted  with- 
out qiialification  it  is  a  mutual  release,  and  bars  all 
claim  for  damages.  (Lovett  v.  Bispham,  2  Alb.  L.  J. 
97.)  Where  a  sale  of  a  condemned  vessel  in  the 
custody  of  the  marshal  was,  by  agreement  between 
the  proctors  of  the  parties,  postponed,  the  max*shal 
was  entitled  to  the  costs  of  keeping  his  watchman 
also  aboard  of  the  vessel.  (The  San  Jacinto,  30  Fed. 
Rep.  206.) 

Costs  in  admiralty. — In  admiralty,  the  costs  are 
under  the  control  of  the  court,  and  do  not  necessar- 
ily follow  the  rule  in  equity  or  admiralty.  They 
may  be  denied  in  whole  or  in  part  to  the  prevailing, 
or  even  allowed  to  the  losing,  party,  as  in  view  of  all 
the  facts  seems  proper  (Union  lee  Co.  v.  Crowell,  5 
U.  S.  App.  270;  55  Fed.  Rep.  87;  The  E.  A.  Shores, 
79  Fed.  Rep.  987).  In  limited  liability  pi'oceediugs, 
the  costs  arising  on  every  contested  issue  should 
fall  on  the  losing  party;  but  the  expenses  of  admin- 
istration, including  the  fees  ajid  other  charges  of 
officers  of  the  court  and  of  the  commissioner,  should 
be  paid  from  the  fund,  unless  and  so  far  as  parties 
have  made  issues,  and  as  to  this  exception  the  owner 
stands  in  the  same  condition  as  any  other  party 
(H.  F.  EXimock,  33  U.  S.  App.  647;  77  Fed.  Rep.  226). 
A  vessel  owner  who  in  procedings  for  limitation  of 
liability,  desires  to  give  a  stipulation  in  lieu  of  trans- 
ferring the  vessel  to  a  trustee  must  pay  the  taxable 
costs  incident  to  giving  the  stipulation,  including  the 
expenses  of  making  the  appraisal  (The  H.  F.  Dimock, 
33  U.  S.  App.  647;  77  Fed.  Rep.  226). 

§  504.  Double  costs  on  nonsuit  in  action 
against  officer. — If,  in  any  suit  against  an  officer 
or  other  person  executing  or  aiding  or  assisting  in 


§§  505-506  PKOCEDUKE.  1208 

the  seizure  of  goods,  under  any  act  providing  for 
or  regulating  the  collection  of  duties  on  imports 
or  tonnage,  the  plaintiff  is  nonsuited,  or  judgment 
passed  against  him,  the  defendant  shall  recover 
double  costs.     (Rev.  Stats,  sec.  971.) 

§  505.  In  copyright  suits,  costs. — In  all  recov- 
eries under  the  copyright  laws,  either  for  damages, 
forfeitures,  or  penalties,  full  costs  shall  be  allowed 
thereon.     (Eev.  Stats,  sec.  972.) 

§  506.  Costs,  infringement  of  patent. — When 
judgment  or  decree  is  rendered  for  the  plaintiff  or 
complainant,  in  any  suit  at  law  or  in  equity,  for 
the  infringement  of  a  part  of  a  patent,  in  which 
it  appears  that  the  patentee,  in  his  specification, 
claimed  to  be  the  original  and  first  inventor  or  dis- 
coverer of  any  material  or  substantial  part  of  the 
thing  patented,  of  which  he  was  not  the  original 
and  first  inventor,  no  costs  shall  be  recovered,  un- 
less the  proper  disclaimer,  as  provided  by  the  pat- 
ent laws,  has  been  entered  at  the  patent  office  be- 
fore the  suit  was  brought.     (Eev.  Stats,  sec.  973.) 

Note.— A  patentee  is  not  for  an  infrinsrement  en- 
titled to  reimbursement  for  counsel  fees  paid  by  him. 
(Parks  V.  Booth.  102  U.S.  96.)  If  the  verdict  affirms 
the  validity  of  all  the  claims,  and  the  novelty  of 
the  invention  in  each,  a  sulisequont  disclaimer  of 
one  or  more  claims  will  not  deprive  of  the  ri.2:ht  to 
cost.  (Eliistic  Faiiric  Co.  v.  Smith,  100  U.  S.  110;  Peek 
V.  Frame,  5  Fish.  Pat.  Cas.  211;  Fed.  Cas.  No.  101)04.) 
"VNliere  there  is  no  necessity  for  filing  a  disclaimer,  a 
failure  to  do  so  does  not  affect  the  court's  discretion 
to  allow  costs  to  complainant  (GameWell  Fire-Alarm 


1209  PKOCEDUEE.  §§  507-509 

Tel.  Ck>.  V.  Municipal  Signal  Co.,  33  U.  S.  App.  714; 
77  Fed.  Rep.  490). 

§  507.  When  costs  of  prosecution  to  be  paid  by 
defendant. — When  judgment  is  rendered  against 
the  defendant  in  a  prosecution  for  any  fine  or 
forfeiture  incurred  under  a  statute  of  the  United 
States,  he  shall  be  subject  to  the  payment  of  costs; 
and  on  every  conviction  for  any  other  ofEense  not 
capital  the  court  may,  in  its  discretion,  award  that 
the  defendant  shall  pay  the  costs  of  the  prosecu- 
tion.    (Rev.  Stats,  sec.  974.) 

§  508.  When  costs  are  recovered  by  defendant 
in  a  prosecution. — If  any  informer  or  plaintiff  on 
a  penal  statute,  to  whom  the  penalty  or  any  part 
thereof,  if  recovered,  is  directed  to  accrue,  discon- 
tinues his  suit  or  prosecution  or  is  nonsuited  there- 
in, or  if,  upon  trial,  judgment  is  rendered  in  favor 
of  the  defendant,  the  court  shall  award  to  the  de- 
fendant his  costs,  unless  such  informer  or  plaintiff 
is  an  officer  of  the  United  States  specially  author- 
ized to  commence  such  prosecution,  and  the  court, 
at  the  trial  in  open  court,  certifies  upon  the  record 
that  there  was  reasonable  cause  for  commencing 
the  same;  in  which  case  no  costs  shall  be  adjudged 
to  the  defendant.     (Rev.  Stats,  sec.  975.) 

§  509.  Fees  of  clerk,  marshal,  etc.,  by  whom 
payable. — If  any  informer  on  a  penal  statute,  to 
whom  the  penalty,  or  any  part  thereof,  if  recov- 
ered, is  directed  to  accrue,  discontinues  his  suit 
or  prosecution  or  is  nonsuited  therein,  or  if,  upon 
trial,  judgment  is  rendered  in  favor  of  the  defend- 


§  510  PKOCEDXIRE.  1210 

ant,  such  informer  shall  be  alone  liable  to  the 
clerk,  marshal,  and  attorney  for  the  fees  of  such 
prosecution,  unless  he  is  an  officer  of  the  United 
States  whose  duty  it  is  to  commence  such  prosecu- 
tion, and  the  court  certifies  that  there  was  reason- 
able cause  for  commencing  the  same,  in  which 
case  the  United  States  shall  be  responsible  for  such 
fees.     (liev.  Stats,  sec.  976.) 

Note.— The  words  "the  fees  of  such  prosecution" 
refer  to  fees  for  services  rendered  to  the  party  prose- 
cuting, aud  to  those  only.  (In  re  Stover,  1  Curt.  93; 
Fed.  Cas.  No.  13500.)  If  the  informer  is  an  officer, 
and  he  obtains  from  the  court  a  certificate  of  proba- 
ble cause,  the  fees  must  be  paid  by  the  United  States. 
(In  re  Stover,  1  Curt.  93;  Fed.  Cas.  No.  1350tj.)  The 
name  of  the  informer  need  not  be  written  at  the  foot 
of  the  indictment.  (U.  S.  v.  Mundell,  1  Hughes,  415; 
Fed.  Cas.  No.  15834.) 

§  510.  Costs,  nonjoinder  of  action. — If  several 
actions  or  processes  are  instituted,  in  a  court  of 
the  United  States  or  one  of  the  Territories,  against 
persons  who  might  legally  be  joined  in  one  action 
or  process  touching  the  matter  in  dispute,  the 
party  pursuing  the  same  shall  not  recover,  on  all 
of  the  judgments  therein  which  may  be  rendered 
in  his  favor,  the  costs  of  more  than  one  action  or 
process,  unless  special  cause  for  said  several  ac- 
tions or  processes  is  satisfactorily  shown  on  motion 
in  open  court.     (Kev.  Stats,  sec.  977.) 

Note.— Two  separate  libels  in  admiralty  of  a  like 
nature,  involving  substantially  the  same  question, 
may  be  consolidated.  (Rogers  v.  Hurney,  4  Cliff.  582; 
Fed.  Cas.  No.  215'.).) 


J  211  PEOCEDUKE.  §§611-512 

§  511.     Costs  in  libels  against  vessel  and  cargo. 

— A\'lien  proceedings  are  had  before  a  court  of  the 
United  States  or  of  the  Territories,  on  several 
libels  against  any  vessel  and  cargo,  which  might 
legally  be  joined  in  one  libel,  there  shall  not  be  al- 
lowed thereon  more  costs  than  on  one  libel,  unless 
special  cause  for  libeling  the  vessel  and  cargo  sep- 
arately is  satisfactorily  shown  on  motion  in  open 
court.  And  in  proceedings  on  several  libels  or 
informations  against  any  cargo,  or  parts  of  cargo, 
or  merchandise  seized  as  forfeited  for  the  same 
cause,  there  shall  not  be  allowed  more  costs  than 
would  be  lawful  on  one  libel  or  information,  what- 
ever may  be  the  number  of  owners  or  consignees 
therein  concerned.  But  allowance  may  be  made 
on  one  libel  or  information  for  the  costs  incidental 
to  several  claims.     (Rev.  Stats,  sec.  978.) 

Note.— Where  unnecessary  libels  or  claims  are  filed 
it  is  at  the  peril  of  paying  costs.  (The  Henry  Ew- 
bank,  1  Sum.  400;  Fed.  Cas.  No.  6376.)  If  two  libels 
are  filed  simultaneously  for  seamen's  wages,  the  costs 
of  one  libel  only  and  one  seizure  can  be  taxed.  (The 
Cabot,  Abb.  Adm.  150;  Fed.  Cas.  No.  2277;  The  R.  P. 
Chase,  3  Ware,  294;  Fed.  Cas.  No.  12099.)  This  sec- 
tion is  merely  in  affirmance  of  the  pre-existing  law 
(Salmon  Falls  Mfg.  Co.  v.  The  Tangier,  3  Ware.  110; 
Fed.  Cas.  No.  12267);  but  there  is  pothing  in  this  sec- 
tion which  compels  parties  having  a  lilce  cause  of  ac- 
tion founded  on  a  several  liability  to  join  under  a 
penalty  of  forfeiture  of  costs.  (The  Young  Mechanic, 
3  Wai-e,  58;  Fed.  Cas.  No.  18182.) 

§  512.     Claimant's  costs,  when  paid  before  pos- 
session.— When  judgment  is  rendered  in  favor  of 


§§  513-515  PKOCEDURE.  1212 

the  claimant  of  any  vessel  or  other  property  seized 
on  behalf  of  the  United  States,  and  libeled  or  in- 
formed against  as  forfeited  under  any  law  thereof, 
he  shall  be  entitled  to  possession  of  the  same  when 
his  own  costs  are  paid.     (Rev.  Stats,  sec.  979.) 

Note.— Claimant  must  pay  the  clerk's  and  marshal's 
fees  before  he  can  take  possession  of  the  property. 
(In  re  Stover,  1  Curt.  93;  Fed.  Cas.  No.  ISoOG.) 

§  513.  District  attorney's  costs. — When  a  dis- 
trict attorney  prosecutes  two  or  more  indictments, 
suits,  or  proceedings  which  should  be  joined,  he 
shall  be  paid  but  one  bill  of  costs  for  all  of  them. 
(Rev.  Stats,  sec.  980.) 

Note.— When  several  attachments  for  contempt  are 
issued,  the  district  attorney  is  entitled  to  only  one 
docket  fee.  (Riggs  v.  Supervisors.  1  Woolw.  377;  Fed. 
Cas.  No.  4191.) 

§  514.     Taxation  of  fees  of  witness. — In  no  case 

shall  the  fees  of  more  than  four  witnesses  be  taxed 
against  the  United  States,  in  the  examination  of 
any  criminal  case  before  a  commissioner  of  a  cir- 
cuit court,  unless  their  materiality  and  importance 
are  first  approved  and  certified  to  by  the  district 
attorney  for  the  district  in  which  the  examination 
is  had;  and  such  taxation  shall  be  subject  to  re- 
vision, as  in  other  cases.     (Rev.  Stats,  sec.  981.) 

§  515.  Attorney  liable  for  costs  vexatiously  in- 
creased.— If  any  attorney,  proctor,  or  other  per- 
son admitted  to  conduct  causes  in  any  court  of  the 
United  States,  or  of  any  territory,  appears  to  have 
multiplied  the  proceedings  in   any   cause  before 


1213  PROCEDURE.  §  516 

such  court,  so  as  to  increase  costs  unreasonably  and 
vexatiously,  he  shall  be  required,  by  order  of  the 
court,  to  satisfy  any  excess  of  costs  so  increased. 
(Eev.  Stats,  sec.  982.) 

Note. — If  a  vessel  seized  under  one  libel  is  released 
on  stipulation,  it  may  be  talven  under  successive  libels. 
(The  Younir  Mechanic,  3  Ware,  58;  Fed.  Cas.  No. 
18182.)  If  a  proctor  presents  an  unreasonable  num- 
ber of  petitions  for  separate  claims  his  fees  may  be 
reduced.  (The  Hinchman,  7  Chic.  L.  N.  387;  Fed. 
Cas.  No.  7620.) 

§  516.  Bill  of  costs,  how  taxed.— The  bill  of 
fees  of  the  clerk,  marshal,  and  attorney,  and  the 
amount  paid  printers  and  witnesses,  and  lawful 
fees  for  exemplifications  and  copies  of  papers  nec- 
essarily obtained  for  use  on  trials  in  cases  whereby 
law  costs  are  recoverable  in  favor  of  the  prevailing 
party,  shall  be  taxed  by  a  judge  or  clerk  of  the 
court,  and  be  included  in  and  form  a  portion  of  a 
judgment  or  decree  against  the  losing  party.  Such 
taxed  bills  shall  be  filed  with  the  papers  in  the 
cause.     (Rev.  Stats,  sec.  983.) 

Taxation  of  costs. — In  actions  at  law  the  court 
must  tax  the  costs  against  the  losing  party,  except 
where  special  provision  to  the  contrary  has  been 
made  by  Congress  (Trinidad  Asphalt  Co.  v.  Robinson, 
52  Fed.  Eep.  347).  The  fees  of  a  witness  cannot  be 
taxed  against  the  adverse  party,  unless  they  have 
been  paid.  (Secor  v.  The  Highlander,  19  How.  Pr. 
3.34;  Fed.  Cas.  No.  12G04).  So  no  costs  can  be 
awarded  wlien  a  case  is  dismissed  for  want  of 
.iurisdiction.  (Abbey  v.  The  Stevens,  22  How.  Pr. 
78;  Fed.  Cas.  No.  8;  Hornthall  v.  The  Collector, 
9  Wall.  560:  Mayor  v.  Cooper,  6  Wall.  247; 
Fed.  Peoc— 102. 


§  516  PEOCEDUBE.  1214 

The  McDonnell,  4  Blatchf.  477;  Fed.  Gas.  No. 
8756;  Maxfield  v.  Levy,  4  Dall.  330;  Agnew  v. 
Dorman,  Taney,  3S0;  Fed.  Gas.  No.  100;  Lowe  v. 
Benjamin,  1  Wall.  Jr.  187;  Fed.  Gas.  No.  8565;  Burn- 
liam  V.  Rangeley,  2  Wood.  &  M.  417;  Fed.  Gas.  No. 
2177;  Citizen's  Baulv  v.  Cannon,  164  U.  S.  319);  but 
tliis  rule  does  not  apply  Avlien  want  of  jurisdiction 
does  not  appear  by  the  arerments  of  the  libel,  but 
is  only  disclosed  by  subsequent  pleadings  or  evi- 
dence after  the  parties  are  in  court  and  in  such  cases 
costs  may  be  adjudged  againt  libelant  on  dismiss- 
ing the  libel  (The  City  of  Florence,  56  Fed.  Rep. 
236).  If  there  arp  several  suits  costs  are  taxed  in 
each  (Ferrett  v.  Atwill,  1  Blatchf.  151;  Fed.  Gas. 
No.  4747);  and  if  there  are  several  defendants  sev- 
ex-al  costs  may  be  allowed.  (Crosby  v.  Folger,  1  Sum. 
514;  Fed.  Cas.  No.  3421.)  Where  several  suits  ai'e 
consolidated  costs  in  each  will  be  taxed  up  to  the 
time  of  consolidation  and  after  that  only  on  the  con- 
solidated suit.  (Simpson  v.  Gaulkins,  Abb.  Adm.  539; 
Fed.  Cas.  No.  12SS0.)  No  judgment  or  decree  can 
be  rendered  against  the  United  States  for  costs  (U. 
S.  T.  La  Vengence,  3  Dall.  297;  U.  S.  v.  Ilooe,  3 
Cranch,  73;  U.  S.  v.  Barker,  2  Wheaton,  39."));  nor 
can  a  marshal  claim  a  lien  for  fees  (The  Antelope, 
12  Wheaton,  .546);  yet  a  party  having  such  a  claim 
may  set  it  up  as  a  defense  in  an  action  against  him, 
brought  by  the  United  States  (U.  S.  v.  Ringgold,  8 
Peters,  150).  The  court  cannot  adjudge  costs  de  novo 
on  an  appeal  from  the  taxation  (The  CaJthneshire, 
Abb,  Adm.  163;  Fed.  Cas.  No.  2294);  and  unless  the 
party  appealing  demands  a  specification  of  items, 
the  charge  will  be  considered  as  acquiesced  in  (Dede- 
kam  V.  Vose,  3  Blatchf.  153;  Fed.  Cas.  No.  3731). 
\\  here  a  dispute  arises  in  regard  to  fees  the  case 
should  be  i-eferred  to  a  person  as  auditor  to  hear 
and  report  the  case  (liottomley  r.  U.  S.,  1  Story,  153; 
Fed.   Cas.   No.   16S9).     The   Federal  fee   bill   (act  of 


1215  PROCEDURE.  §  516 

1853,  U.  S.  Rev.  Stats.,  sec.  983)  abolished  all  form- 
er practice  and  laws  on  the  subject  of  fees  in  the 
courts  of  the  United  States,  and  prescribed  the 
items  composing  a  bill  of  costs  to  be  taxed  against 
the  losing  party  (O'Neil  v.  Kansas  City  S.  &  M.  T. 
Co.,  31  Fed.  Rep.  663).  Fees  for  certifying  docu- 
ments not  actually  certified  may  not  be  taxed  as 
costs  (Shaw  El.  Crane  Co.  v.  Shriver,  80  Fed.  Rep. 
640).  In  our  Federal  practice  the  acts  of  Congress 
are  not  superseded  by  the  State  statutes,  even  if  such 
statutes  may  be  construed  as  permitting  a  more  in- 
dulgent practice  (See  Ford  v.  Louisville  etc.  R.  Co., 
45  Fed.  Rep.  210).  In  the  absence  of  a  rule  of  court 
or  of  a  written  stipulation  so  providing  the  expense 
of  printing  briefs,  or  of  procuring  copies  of  the  re- 
porter's notes  of  testimony  for  the  use  of  the  par- 
ties, is  not  taxable  (Kelly  v.  Springfield  Ry.  Co.,  83 
Fed.  Rep.  183).  Allowances  to  railroad  receivers  and 
their  attorneys  are  taxable  as  costs  (Petersburg  Sav. 
&  Ins.  Co.  V.  Dellatorre,  30  U.  S.  App.  504;  70  Fed. 
Rep.  643).  In  suits  against  the  United  States,  when 
Congress  permits  it  the  court  may  award  to  plain- 
tifiC  if  he  prevails  costs  of  witnesses  and  fees  of 
clerk  (United  States  r.  Harmon,  147  U.  S.  268;  Ma- 
rine V.  Lyon,  8  U.  S.  App.  573;  62  Fed.  Rep.  153;  but 
see  Stanley  v.  Schwalby,  162  U.  S.  255;  Carlisle  v. 
Cooper,  26  U.  S.  App.  240;  64  Fed.  Rep.  472).  Where, 
on  appeal,  it  is  ordered  that  a  party  should  recover 
costs  the  circuit  court  can  entertain  an  application 
for  an  extra  allowance  of  costs  out  of  the  funds, 
to  the  counsel  of  such  party  (Mason  v.  Pewabic  Min. 
Co.,  153  U.  S.  361).  The  expense  of  maps  necessarily 
introduced  at  the  trial  is  taxable  (Lilienthal  v.  South- 
em  Cal.  Ry.  Co.,  61  Fed.  Rep.  622).  Payments  to 
stenographer  for  making  carbon  copies  of  testimony 
for  use  of  the  party  or  his  counsel  are  not  taxable 
(Atwood  V.  Jaques,  63  Fed.  Rep.  561;  The  "William 


§§  517-518  PROCEDUBE.  1216 

Branfoot,  8  U.  S.  129;  52  Fed.  Eep.  390).  Notarial  fees 
for  seals  affixed  to  affidavits  used  on  a  motion  for  a 
preliminary  injunction  are  taxable  (Atwood  v.  .Taques, 
63  Fed.  Rep.  561).  A  reasonable  attorney's  fee  is 
properly  taxable  as  costs  in  contempt  proceedings 
(Stahl  r.  Ertel,  62  Fed.  Rep.  920).  A  party  cannot 
tax  as  costs  more  than  the  amount  actually  paid  to 
witnesses  (Burrow  v.  Kansas  City  Ft.  S.  &  M.  R. 
Co.,  5i  Fed.  Rep.  278).  The  expense  of  testimony  tak- 
en de  bene  esse,  obtained  solely  for  the  convenience 
of  counsel  cannot  be  taxed  as  part  of  the  c-osts  in 
the  absence  of  agreement  to  that  effect  (Roundtree  v. 
Bembert,  71  Fed.  Rep.  255). 

§  517.     Bill  of  costs  to  be    sworn  to. — Before 

any  bill  of  costs  shall  be  taxed  by  any  judge  or 
other  officer,  or  allowed  by  any  officer  of  the  treas- 
ury, in  favor  of  clerks,  marshals,  commissioners,  or 
district  attorneys,  the  party  claiming  such  bill 
shall  prove  by  his  own  oath,  or  that  of  some  other 
person  having  a  knowledge  of  the  facts,  to  be  at- 
tached to  such  bill,  and  filed  therewith,  that  the 
services  charged  therein  have  been  actually  and 
necessarily  performed,  as  therein  stated.  (Rev. 
Stats,  sec.  984.) 

Note.— The  requirement  of  an  affidavit  that  the  ser- 
vices charged  have  been  actually  and  necessarily  per- 
formed applies  to  all  eases,  and  not  to  government 
cases  only.     (Jerman  v.  Stewart,  12  Fed.   Rep.  276.) 

5^  518.  Executions  to  run  in  all  the  districts  of 
the  State. — All  writs  of  execution  upon  judg- 
ments or  decrees  obtained  in  a  circuit  or  district 
court,  in  any  State  which  is  divided  into  two  or 
more  districts,  may  run  and  be  executed  in  any 


1217  PROCEDURE.  §  519 

part  of  such  State;  but  shall  be  issued  from,  and 
made  returnable  to,  the  court  wherein  the  judg- 
ment was  obtained.     (Kev.  Stats,  sec.  985.) 

Executions.— A  writ  of  execution  issued  to  the 
marshal  of  one  district  may  be  executed  by  the  mar- 
shal of  the  other  district  (Prorost  v.  Gorrell,  5  Week. 
Notes,  151;  Fed.  Cas.  No.  11400);  and  if  a  State  be 
divided  into  two  districts,  a  judgment  for  one  dis- 
trict will  be  a  lien  on  land  in  the  other  district.  (Pro- 
vost V.  Gon-ell,  5  Week.  Notes,  151;  Fed.  Cas.  No. 
11400.)  A  plaintiff  who  resides  in  another  district 
may  be  required  to  give  security  for  costs.  (Lyman 
V.  &  R,  Co.  V.  Southard,  12  Blatchf.  405;  Fed.  Cas. 
No.  8633.)  Jurisdiction  to  render  judgment  of  fiat 
executio  on  the  return  of  nihil  to  two  successive 
wi'its  of  scire  facias  is  obtained  in  accordance  with 
the  rule  that  the  return  of  two  nihils  is  equivalent  to 
a  service  (Brown  t.  Wygaut,  163  U.  S.  618).  When 
a  marshal,  in  levying  execution,  forcibly  takes  pi'op- 
erty  out  of  the  possession  of  a  constable  who  has 
levied  thereon  under  a  dif^itress  w^arrant  or  of  a 
pledgee  for  the  benefit  of  third  persons,  such  action 
is  illegal,  and  the  judgment  creditor  acquires  no 
right  to  or  lien  upon  the  property  (LfCwis  v.  Dillard, 
40  U.  S.  App.  404;  76  Fed.  Rep.  688).  In  general 
process  is  not  returnable  in  a  different  disti-ict  from 
that  of  its  issue,  except  under  the  Chinese  Ex- 
clusion Act  of  1888  (United  States  v.  Dong  Hop,  55 
Fed.  Rep.  58).  A  judgment  does  not  become  final 
for  the  purpose  of  an  execution  until  after  a  mo- 
tion for  a  new  trial  which  has  been  made  and  duly 
filed  is  disposed  of  (Danielson  v.  Northwestern  Fuel 
Co.,  55  Fed.  Rep.  49). 

§  519.  Executions  in  favor  of  United  States  to 
run  in  every  State. — All  writs  of  execution  upon 


§  520  PROCEDURE.  1218 

judgments  obtained  for  the  use  of  the  United 
States  in  any  court  thereof,  in  one  State,  may  run 
and  be  executed  in  any  other  State  or  in  any  Ter- 
ritory, but  shall  be  issued  from,  and  made  return- 
able to,  the  court  wherein  the  judgment  was  ob- 
tained.     (Eev.  Stats,  sec.  986.) 

§  520.  Execution  stayed  on  conditions. — When 
a  circuit  court  enters  judgment  in  a  civil  action, 
either  upon  a  verdict  or  on  a  finding  of  the  court 
upon  the  facts,  in  cases  where  such  finding  is  al- 
lowed, execution -may,  on  motion  of  either  party, 
at  the  discretion  of  the  court,  and  on  such  condi- 
tions for  the  security  of  the  adverse  party  as  it 
may  judge  proper,  be  stayed  forty-two  days  from 
the  time  of  entering  judgment,  to  give  time  to 
file  in  the  clerk's  office  of  said  court  a  petition  for 
a  new  trial.  If  such  petition  is  filed  within  said 
term  of  forty-two  days,  with  a  certificate  thereon 
from  any  judge  of  such  court  that  he  allows  it 
to  be  filed,  which  certificate  he  may  make  or  re- 
fuse at  his  discretion,  execution  shall,  of  course, 
be  further  stayed  to  the  next  session  of  said  court. 
If  a  new  trial  be  granted  the  former  judgment 
shall  be  thereby  rendered  void.  (Rev.  Stats,  sec. 
987.) 

Note.— Congress  did  not  Intend  to  suspend  the  op- 
eration of  a  judf^ment  .so  as  to  allow  application  for 
a  new  trial  beyond  a  period  of  forty-two  days  from 
its  rendition  (Cambnston  v.  U.  S.,  95  IT.  S.  285);  and 
an  application  to  strike  out  a  judgment  after  the  lapse 
of  the  term  is  not  within  the  terms  Of  this  section. 
(Popino  v.  Mc.\llister,  4  Wash.  C.  C.  393;  Fed.  Cas. 


1219  PEOCEDURE.  §§  521-523 

No.  11277.)  Tlie  right  to  apply  for  a  new  trial  is 
independent  of  this  section.  It  provides  for  a  case 
whe're  a  party  desires  an  extension  of  the  time  with- 
in which  to  malie  application.  (Rutheford  v.  Penn. 
Mut.  Life  Ins.  Co.,  1  Fed.  Rep.  456;  1  McCrary,  120.) 
The  motion  need  not  be  based  upon  petition  except 
when  made  after  judgment.  (Emma  S.  M.  Oo.  v. 
Park,  14  Blatchf.  411;  Fed.  Cas.  No.  4467.) 

§  521.     Judgment  debtor,  continuance. — In  any 

state  where  judgments  are  liens  upon  the  prop- 
erty of  the  defendant,  and  where,  by  the  laws  of 
such  State,  defendants  are  entitled,  in  the  courts 
thereof,  to  stay  of  execution  for  one  term  or  more, 
defendants  in  actions  in  the  courts  of  the  United 
States,  held  therein,  shall  be  entitled  to  a  stay 
of  execution  for  one  term,    (Eev.  Stats,  sec.  988.) 

§  522.     Execution  against  officers  of  revenue. — 

When  a  recovery  is  had  in  any  suit  or  proceeding 
against  a  collector  or  other  officer  of  the  revenue 
for  any  act  done  by  him,  or  for  the  recovery  of 
any  money  exacted  by  or  paid  to  him  and  by  him 
paid  into  the  treasury,  in  the  performance  of  his 
official  duty,  and  the  court  certifies  that  there  was 
probable  cause  for  the  act  done  by  the  collector 
or  other  officer,  or  that  he  acted  under  the  di- 
rections of  the  secretary  of  the  treasury,  or  other 
proper  officer  of  the  government,  no  execution 
shall  issue  against  such  collector  or  other  officer, 
but  the  amount  so  recovered  shall,  upon  final 
judgment,  be  provided  for  and  paid  out  of  the 
proper  appropriation  from  the  treasury.  (Rev. 
Stats,  sec.  989.) 


§1'523  PROCEDURE.  1220 

Note.— The  term  "officer  of  the  revenue"  means  an 
officer  of  the  revenue  from  customs.  (Campbell  v. 
James,  18  Blatchf.  196;  S.  C,  3  Fed.  Rep.  515.)  His 
claim  for  taxable  costs  not  taxed  cannot  be  admitted 
on  a  ti'iaJ  unless  presented  and  disallowed.  (U.  S.  v. 
Ingersoll,  Crabbe,  135;  Fed.  Gas.  No.  15440.)  A  judge 
maj-  grant  the  certificate  although  he  is  not  the  judge 
before  whom  the  rerdict  was  rendered  (Cox v.  Barney, 
14  Blatchf.  289;  Fed.  Cas.  No.  33(X));  and  it  may  be 
issued  not  only  to  prevent  the  issuing  of  an  execution, 
but  to  stay  one  already  issued.  (Cox  v.  Barney,  14 
Blatchf.  289;  Fed.  Oas.  No.  3300.)  It  is  the  duty  of 
the  court  to  grant  it  although  the  money  may  not  be 
paid  under  it.  (Cox  v.  Barney,  14  Blatchf.  289;  Fed. 
Cas.  No.  3300.)  Whether  it  ought  to  be  granted  can- 
not be  determined  before  trial.  (Andrae  v.  Redfield, 
12  Blatchf.  407;  Fed.  Cas.  No.  3G7.)  The  words  "offi- 
cer of  the  revenue"  mean  of  the  revenue  of  customs. 
(Campbell  v.  James,  3  Fed.  Rep.  513.)  It  is  not  only 
necessaiy  that  there  be  a  recovery  against  the  col- 
lector, but  there  must  be  a  certificate  of  probable 
cause  before  the  liability  of  the  government  begins. 
(White  v.  Arthur,  10  Fed.  Rep.  83;  following  U.  S.  v. 
Sherman,  98  U.  S.  5U5.) 

§  523.  Imprisonment  for  debt. — Xo  person 
shall  be  imprisoned  for  debt  in  any  State,  on 
process  issuing  from  a  court  of  the  United  States, 
where,  by  the  laws  of  such  State,  imprisonment 
for  debt  has  been  or  shall  be  abolished.  And  all 
modifications,  conditions,  and  restrictions  upon 
imprisonment  for  debt  provided  by  the  laws  of 
any  State  shall  be  applicable  to  the  process  issu- 
ing from  the  courts  of  the  United  States  to  be 
executed  therein;  and  the  same  course  of  proceed- 


1221  PKOCEDTTRE.  §  523 

mgs  shall  be  adopted  therein  as  may  be  adopted 
in  the  courts  of  such  State.    (Eev.  Stats,  sec.  990.) 

Arrest  of  debtor. — A  debtor  is  not  liable  to  arrest 
on  Federal  process  unless  liable  to  arrest  under  the 
State  laws  (Gray  v.  Munroe,  1  McLean,  528;  Fed.  Cas. 
No.  5724;  Wilber  v.  Ingersoll,  2  McLean,  322;  Fed. 
Cas.  No.  17632);  and  this  limitation  applies  as  well 
to  admiralty  courts  as  to  others.  (The  Kentucliy,  4 
Blatchf.  448;  Fed.  Cas.  No.  7717;  Louisiana  Ins.  Co. 
V,  Niclierson,  2  Low.  310;  Fed.  Cas.  No.  8539;  Fry  v. 
Oook,  8  Chic.  L.  N.  286;  Fed.  Cas.  No.  5138;  The 
Blanche  Page,  16  Blatehf.  1;  Fed.  Cas.  No.  1524;  but 
see  Gardner  v.  Isaacson,  Abb.  Adm.  141;  Fed.  Cas. 
i\o.  5230;  Gaines  v.  Travis,  Abb.  Adm.  422;  Fed.  Cas. 
No.  5180;  Hanson  v.  Fowle,  1  Saw.  497;  Fed.  Cas.  No. 
6041;  Marshall  v.  Bazin,  7  N.  Y.  Leg.  Obs.  342;  Fed. 
Cas.  No.  9125;  Hodge  v.  Bemis,  12  Law  Eep.  470; 
Fed.  Cas.  No.  6557.)  Where  the  State  law  does 
not  allow  imprisonment  for  debt  after  the  debtor 
has  S'urrendered  his  property,  he  cannot  be  ar- 
rested on  Federal  court  process.  (Moan  v.  Wil- 
marth.  3  Wood.  &  M.  399;  Fed.  Cas.  No.  9686.) 
The  proceedings  in  all  cases  of  arrest  on  mesne 
process  must  confoi-m  to  practice  as  prescribed 
by  State  law.  (In  re  Bergen,  2  Hughes,  513;  Fed. 
Cas.  No.  1338.)  All  constructions  in  the  absence  of 
fraud  should  lean  in  favor  of  personal  liberty.  (Moan 
V.  Wilmarth,  3  Wood.  &  M.  399;  Fed.  Cas.  No.  9686.) 
So  where  a  State  law  modifies  imprisonment  for  debt 
the  modification  is  adopted  (Low  v.  Durfee,  5  Fed. 
Rep.  256;  United  States  v.  Tetlow,  2  Low.  159;  Fed. 
Cas.  No.  16456;  but  see  Catherwood  v.  Gapete,  2  Curt. 
94;  Fed.  Cas.  No.  2513;  In  re  Freeman,  2  Curt.  491; 
Fed.  Cas.  No.  5083:  Campbell  v.  Hadley,  1  Sprague, 
470;  Fed.  Cas.  No.  2358):  as  a  law  exempting  an  in- 
solvent who  has  received  a  discharge  from  imprison- 


3  524  PBOCEDUBE.  1222 

ment  (Low  v.  Durfee,  5  Fed.  Rep.  256);  or  where 
the  State  law  imposes  conditions  or  restrictions  upon 
the  power  to  imprison  a  debtor  (Oatherwood  v, 
Gapete,  2  Curt.  94;  Fed.  Cas.  No.  2513);  or  where  it 
prohibits  imprisonment  in  certain  cases  this  section 
adopts  the  modification.  (U.  S.  v.  Tetlow,  2  Low.  159; 
Fed.  Cas.  No.  16456.)  The  verification  of  papers  for 
the  arrest  of  a  debtor  may  be  made  before  a  commis- 
sioner of  the  United  States.  (Fulton  v.  Gilmore,  2 
Flip.  260;  10  Chic.  L.  N.  108;  Fed.  Cas.  No.  5154.) 
Whether  defendant  is  liable  to  aiTest  on  execution  de- 
pends on  the  State  statute.  (U.  S.  v.  Moller,  10  Ben. 
189;  Fed.  Cas.  NO.  15793.)  A  statute  which  provides 
that  creditors  who  have  caused  their  debtors  to  be 
imprisoned  upon  Avrits  of  ca.  resp.  or  ca.  sa.  must  pay 
their  board  weelily  in  advance,  or  the  debtors  will  be 
discharged,  is  a  restriction  on  imprisonment  for  debt 
within  the  meaning  of  the  above  section.  (Stroheim 
V.  Deimel,  73  Fed.  Rep.  430.) 

§  524.     Discharge  from  arrest  or  imprisonment. 

— When  any  person  is  arrested  or  imprisoned  in 
any  State,  on  mesne  process  or  execution  issued 
from  any  court  of  the  United  States,  in  any  civil 
action,  he  shall  be  entitled  to  discharge  from  such 
arrest  or  imprisonment  in  the  same  manner  as  if 
he  were  so  arrested  and  imprisoned  on  like  pro- 
cess from  the  courts  of  such  State.  The  same 
oath  may  be  taken,  and  the  same  notice  thereof 
shall  be  required,  as  may  be  provided  by  the  laws 
of  such  State,  and  the  same  course  of  proceed- 
ings shall  be  adopted  as  may  be  adopted  in  the 
courts  thereof.  But  all  such  proceedings  shall  be 
had  before  one  of  the  commissioners  of  the  cir- 
cuit court  for  the  district  whore  the  defendant 
18  so  held.     (Rev.  Stats,  sec.  991.) 


1223  PROCEDURE.  §  525 

Discharge  from  arrest.— Where  State  laws  can  be 
executed  conveniently  and  properly  by  Federal  courts 
and  judges,  they  have  been  adopted  as  incident  to  the 
remedy,  and  are  cumulative,  and  in  addition  to  this 
section  (Duncan  v.  Darst,  1  How.  301);  but  this  sec- 
tion does  not  adopt  State  laws  prospectively.  (In  re 
Freeman,  2  Curt.  491;  Fed.  Cas.  No.  5083;  Campbell 
V.  Hadley,  1  Sprague,  470;  Fed.  Cas.  No.  2358.)  This 
section  is  obligatory  on  shei'iffs,  and  no  discharge 
from  jail  under  a  State  law  not  in  conformity  thea-e- 
with  will  exonerate  the  sheriff.  (McNutt  v.  Bland,  2 
How.  1.)  So  a  discharge  by  a  State  official  under  a 
State  law  will  not  authorize  a  release  from  prison 
on  process  issued  from  a  Federal  court.  (McNutt  v. 
Bland,  2  How.  1;  Duncan  v.  Darst,  1  How.  301;  Bank 
V.  Tyler,  4  Pet.  366;  Catherwood  v.  Gapete.  2  Curt. 
94;  Fed.  Cas.  No.  2513;  In  re  Hopkins,  2  Curt.  567; 
Fed.  Cas.  No.  6683.)  In  adopting  State  legislation 
Congress  adopted  the  proceedings  only  so  far  as  they 
are  analogous  and  applicable.  (Lockhurst  v.  West, 
7  Met.  2S0.)  If  the  United  States  sues  for  a  pen- 
alty, its  judgment  can  only  be  enforced  by  process 
under  State  law,  and  a  discharge  under  a  State  law 
will  be  valid.  (Stearns  v.  IT.  S.,  2  Paine,  300;  Fed. 
Cas.  No.  13341;  see  U.  S.  v.  Tetlow,  2  Low.  159;  Fed. 
Cas.  No.  16456;  but  see  U.  S.  v.  Hewes,  Crabbe,  307; 
Fed.  Cas.  No.  15359.)  A  discharge  under  this  section 
does  not  release  the  debtor  from  his  liability  (King  v. 
Riddle,  7  Cranch,  168);  but  if  the  lien  of  a  judgment 
is  surrendered  by  levying  a  capias  ad  satisfaciendum, 
a  discharge  under  this  section  will  not  revive  it. 
(Snead  v.  McCoull,  12  How.  407.) 

§  525.  Privileges  of  jail  limits. — Persons  im- 
prisoned on  process  issuing  from  any  court  of  the 
United  States  in  civil  actions,  as  well  at  the  suit 
of  the  United  States  as  at  the  suit  of  any  person, 


§  526  PROCEDURE.  li!24 

shall  be  entitled  to  the  same  privileges  of  the 
3'ards  of  the  resijective  jails  as  persons  confined  in 
like  cases  on  process  from  the  courts  of  the  re- 
spective States  are  entitled  to,  and  under  the  like 
regulations  and  restrictions.    (Eev.  Stats,  sec.  992.) 

Note.— This  section  adopts  State  laws  in  force  at  the 
time  of  its  passage.  (U.  S.  v.  Kniglit,  14  Peters,  301; 
S.  C,  3  Sum.  358;  Fed.  Cas.  No.  1."k)39.)  It  embraces 
executions  at  the  suit  of  the  United  Srates.  (U.  S.  v. 
Knight,  14  Peters,  301.)  When  a  prisoner  is  regular- 
ly committed  to  a  State  jail  by  the  marshal,  he  is 
no  longer  in  custody  of  the  marshal  nor  under  his 
authority  or  command.  (Randolph  v.  Donaldson,  9 
Cranch,  TO:  see  United  States  v.  Harden,  10  Fed.  Rep. 
802;  4  Hughes,  455.) 

§  526.  Goods  taken  on  a  fieri  facias,  how  ap- 
praised.— When  it  is  required  by  the  laws  of  any 
State  that  goods  taken  in  execution  on  a  writ  of 
fieri  facias  shall  be  appraised  before  the  sale  there- 
of, the  appraisers  appointed  under  the  authority 
of  the  State  may  appraise  goods  taken  in  exe- 
cution on  a  fieri  facias  issued  out  of  any  court  of 
the  United  States,  in  the  same  manner  as  if  such 
writ  had  issued  out  of  a  court  of  such  State.  And 
the  marslial  in  whose  custody  sucli  goods  may  be 
shall  summon  the  appraisers,  in  the  same  man- 
ner as  tlie  sherifT  is,  by  the  laws  of  such  State, 
reciuircd  to  summon  them;  and  if  the  appraisers, 
being  duly  summoned,  fail  to  attend  and  per- 
form the  duties  required  of  them,  the  marshal  may 
proceed  to  sell  such  goods  without  an  appraise- 
ment. When  such  appraisers  attend  they  shall 
be  entitled  to  the  like  fees  as  in  cases  of  appraise- 


1225  PROCEDURE.  >  §  536a 

ment  under  the  laws  of  the  State.     (Eev.  Stats. 
sec.  993.) 

Note.— This  section  proceeds  on  the  idea  that  State 
appraisement  laws  have  been  adopted,  and  the  officer 
may  avail  himself  of  those  persons  selected  by  local 
ti'ibunals  to  appraise  property  taken  on  eaiecution. 
(Wayman  v.  Southard,  10  Wheat.  1.) 

§  526  a.  Property,  how  sold  under  order  of 
court. — 1.  All  real  estate  or  any  interest  in  land 
sold  under  any  order  or  decree  of  any  United 
States  court  shall  be  sold  at  public  sale  at  the 
courthouse  of  the  county,  parish,  or  city  in  which 
the  property,  or  the  greater  part  thereof,  is  lo- 
cated or  upon  the  premises,  as  the  court  render- 
ing such  order  or  decree  of  sale  may  direct.  2. 
That  all  personal  property  sold  under  any  order 
or  decree  of  any  court  of  the  United  States  shall 
be  sold  as  provided  in  the  first  section  of  this 
Act,  unless  in  the  opinion  of  the  court  rendering 
such  order  or  decree  it  would  be  best  to  sell  it  in 
some  other  manner.  3.  That  hereafter  no  sale  of 
real  estate  under  any  order,  judgment  or  decree 
of  any  United  States  court  shall  be  had  without 
previous  publication  of  notices  of  such  proposed 
sale  being  ordered  and  had  once  a  week  for  at 
least  four  weeks  prior  to  such  sale  in  at  least  one 
newspaper,  printed,  regularly  issued  and  having  a 
general  circulation  in  the  county  and  State  where 
the  real  estate  proposed  to  be  sold  is  situated,  if 
such  there  be.  If  said  property  shall  be  situated  in 
more  than  one  county  or  State,  such  notice  shall 
be  published  in  such  of  the  counties  where  said 
Fed.  Proc— 103. 


§  527  PKOCEDUEE.  1226 

property  is  situated  as  the  court  may  direct. 
►Said  notice  shall,  among  other  things,  describe  the 
real  estate  to  be  sold.  The  court  may  in  its  dis- 
cretion, direct  the  publication  of  the  notice  of 
sale  herein  provided  for  to  be  made  in  such  other 
papers  as  may  seem  proper.    (27  U.  S.  Stats.  751.) 

Note.— The  above  act  is  prospective  only.  (Cen- 
tral Trust  Co.  V.  Sheffield  etc.  R.  R.  Co.,  60  Fed. 
Rep.  9.) 

Sale— Publication.— Publication  of  notice  of  sale 
once  a  weeli  for  only  twenty-seven  days  before  the 
day  of  sale  is  not  a  "previous  publication"  of  such 
a  notice  "once  a  week  for  at  least  four  weeks  prior 
to  such  sale,"  as  required  by  the  above  act.  (Wilson 
V.  Northwestern  Mut.  Life  Ins.  Co.,  27  U.  S.  App. 
526;  65  Fed.  Rep.  38.) 

§  527.  Death  of  marshal  after  levy  or  sale. — 
When  a  marshal  dies,  or  is  removed  from  office, 
or  the  term  of  his  commission  expires,  after  he 
has  taken  in  execution,  under  process  from  a  court 
of  the  United  States,  any  lands,  tenements,  or 
hereditaments,  and  before  sale  or  other  final  dis- 
position thereof,  the  like  process  shall  issue  to 
the  succeeding  marshal,  and  the  same  proceeding 
shall  be  had  as  if  such  marshal  had  not  died  or 
been  removed,  or  the  term  of  his  commission  had 
not  expired.  And  when  a  marshal  dies  or  is  re- 
moved from  office,  or  the  term  of  his  commission 
expires,  after  he  has  sold  any  lands,  tenements, 
or  hereditaments,  under  process  from  a  court  of 
the  United  States,  and  before  a  deed  for  the  same 
is  executed  by  him  to  the  purchaser,  such  court 


1227  PBOCEDUBE.  §  528 

may,  on  application  by  the  purchaser,  or  by  the 
plaintiff  at  whose  suit  the  sale  was  made,  setting 
forth  the  case  and  the  reason  why  the  title  was 
not  perfected  by  said  marshal,  order  the  marshal 
for  the  time  being  to  perfect  the  title  and  exe- 
cute a  deed  to  the  purchaser,  upon  his  paying  the 
purchase-money  and  costs  remaining  unpaid. 
(Kev.  Stats,  sec.  994.) 

Note.— If  a  marshal  is  removed  from  office  after 
the  sale  and  before  the  execution  of  a  deed  to  the  pur- 
chaser, his  successor  may  execute  the  deed  (Byers  v. 
Fowler,  12  Arls.  218;  and  if  removed  after  he  has 
made  a  levy  a  ne^'^  writ  may  be  issued  to  his  suc- 
cessor and  all  rights  of  the  judgment  creditor  will 
remain  as  under  the  prior  writ.  (Doolittle  v.  Bryan, 
14  How.  563.)  If  the  purchaser  obtains  an  order  di- 
recting the  successor  to  make  the  deed,  such  order 
is  a  mere  ex  parte  proceeding,  and  not  a  judicial  act. 
(Merchants'  Bank  v.  Evans,  51  Mo.  335.)  A  deed 
executed  by  the  marshal  should  be  admitted  to  record 
in  the  State  courts.  (Byea-s  v.  Fowler,  12  Ark.  218.) 
And  if  a  State  law  makes  the  certificate  of  purchase 
assignable,  a  deed  made  to  such  assignee  will  be 
valid.    (Martin  v.  Gilmore,  72  111.  193.) 

§  528.  Moneys  paid  into  court. — All  moneys 
paid  into  court  of  the  United  States,  or  received 
by  the  officers  thereof,  in  any  cause  pending  or 
adjudicated  in  such  court,  shall  be  forthwith  de- 
posited with  the  treasurer,  an  assistant  treasurer, 
or  a  designated  depositary  of  the  United  States, 
in  the  name  and  to  the  credit  of  such  court;  pro- 
vided, that  nothing  herein  shall  be  construed  to 
prevent  the  delivery  of  any  such  money  upon  se- 


§  529  rBocEDUKE.  1228 

curity,  according  to  agreement  of  parties,  under 
the  direction  of  the  court.    (Rev.  Stats,  sec.  995.) 

Money  in  the  hands  of  the  clerk  of  a  court  is  not 
liable  to  attachment.  (The  Lottawanna,  20  Wall.  201; 
In  re  Forsyth,  78  Fed.  Rep.  21)6.)  Neither  is  monej- 
in  the  hands  of  a  designated  depositai-y  of  the  court, 
placed  there  pending  litigation  concerning  it,  subject 
to  process.  (Jones  v.  Merchants'  Nat.  Bank,  33  U.  S. 
App.  703;  76  Fed,  Rep.  683.)  Money  received  by  a 
master  in  chancery  in  payment  of  property  sold  uix)u 
the  foreclosure  of  a  mortgage  ought,  in  pursuance 
of  U.  S.  Rev.  Stats.,  sec.  91>5,  to  be  deposited  with  a 
designated  depositary  of  the  United  States;  and  the 
clerk  is  entitled  to  his  commission  thereon.  (Thomas 
V.  Chicago  &  G.  S.  R.  Co.,  37  Fed.  Rep.  548.)  Moneys 
paid  into  court  to  the  credit  of  a  suit  in  equity  in 
the  same  court  are  to  be  disposed  of  in  that  suit,  and 
no  orders  relating  to  such  moneys  can  properly  be 
made  in  another  suit  which  does  not  include  the  same 
parties  as  the  former  suit.  (Gregory  v.  Boston  Safe 
Dep.  &  T.  Co.,  144  U.  S.  663.)  Third  parties  claiming 
pixjperty  levied  on  by  the  marshal  will  not  be  per- 
mitted to  take  it  out  of  his  possession  under  color  of 
process  by  means  of  a  sepai'ate  suit.  (St.  Paul  M.  & 
M.  Ry.  Go.  V.  Drake,  44  U.  S.  App.  271;  72  Fed.  Rep. 
945.)  Generally,  as  to  control  of  court  over  money  in 
its  hands,  see  Caesar  v.  Capell,  83  Fed.  Rep.  403. 

§  529.  Moneys  deposited,  how  withdrawn. — 
No  money  deposited  as  aforesaid  sliali  be  with- 
drawn except  by  order  of  the  judge  or  judges  of 
said  courts  respectively,  in  term  or  in  vacation, 
to  be  signed  by  such  judge  or  judges,  and  to  be 
entered  and  certified  of  record  by  the  clerk;  and 
every  such  order  shall  state  the  cause  in  or  on 


1229  PROCEDURE.  §  529 

account  of  which  it  is  drawn;  and  it  shall  be  the 
duty  of  the  judge  or  judges  of  said  courts,  re- 
spectively, to  cause  any  moneys  deposited  as  afore- 
said, which  have  remained  in  the  registry  of  the 
court  unclaimed  for  ten  years  or  longer,  to  be  de- 
posited in  a  designated  depositary  of  the  United 
States,  to  the  credit  of  the  United  States.  (Kev. 
Stats,  sec.  996;  as  amended,  29  U.  S.  Stats.  578.; 


§  530  PBOC£r>UB£  ON  EBBOB  AND  APPEAU  1230 


CHAPTER  XXI. 

PEOCEDUBE  ON  EEROB  AND  APPEAIi, 

§  530.     Removal  of  causes  by  writ  of  error, 

§  531.     Citation. 

§  532.     Citation — Supreme  court. 

I  533.    Bond  in  error  and  on  appeal. 

§  534.    No  bond  required  of  United  States,  etc. 

S  535.  Writs  of  error  to  district  courts  acting  as  cir- 
cuit courts. 

§  536.  "Writs  of  error  to  State  courts,  manner  of 
issue. 

§  537.  Writs  of  error  returnable  to  ttie  supreme 
court,  how  issued. 

§  538.    Amendment  of  writ  of  eiTor. 

§  5.39.    Amendment  in  prize  appeals. 

§  540.    Supersedeas. 

§  541.  Writs  of  eiTor  and  appeals  to  supreme  court, 
time  for  taking. 

§  542,    Appeals  in  prize  causes  within  what  time. 

§  543.     Damages  and  costs  on  affirmance  in  error. 

§  544.     Reversal  on  error  limited. 

§  544  a,  Cases  tiied  by  the  circuit  court  without  a 
jury. 

S  545.    Appeals  from  circuit  courts  to  supreme  court. 

§  546.  Where  both  parties  appeal  to  the  supreme 
court,  one  record  sufficient, 

§  530.     Removal  of  causes  by  writ  of  error. — 

There  shall  be  annexed  to  and  returned  with  any 
writ  of  error  for  the  removal  of  a  cause,  at  the  day 
and  place  therein  mentioned,  an    authenticated 


1231  TEOCEDUEE  ON  ERROR  AND  APPEAL.  §  530 

transcript  of  the  record,  an  assignment  of  errors, 
and  a  prayer  for  reversal,  with,  a  citation  to  the 
adverse  party.     (Rev.  Stats,  sec.  997.) 

Transcript. — A  i-ecord  which  is  mereily  authenti- 
cated by  the  clerk  or  judge  is  not  properly  verified 
(Wilson  V.  Daniel,  3  Dall.  401);  and  if  the  ease  was 
tried  on  an  agreed  statement  of  facts,  a  record  which 
omits  the  other  proceedings  is  insufficient  (Keene  v. 
Whittaker,  13  l'eters,459;  Curtis  v.  Petitpain,  18  How. 
109.)  If  the  transcript  is  returned  within  proper  time 
with  the  copy  of  the  wi-it  of  error  it  is  sufficient  (Mus- 
sina T.  Cavazos,  6  Wall.  355):  as  a  rigid  and  litei'al 
fulfillment  of  everything  prescribed  is  not  an  indis- 
pensable requisite  to  the  jurisdiction  of  the  supreme 
court  (Mussina  v.  Oavazos,  6  Wall.  355):  but  the  origi- 
nal writ  of  eiTor  should  be  returned.  (Mussina  v. 
Cavazos,  6  Wall.  355.)  The  transcript  is  sufficient  al- 
though it  omits  the  names  of  jurors  (Owens  v.  Han- 
ney,  9  Cranch,  180);  and  it  is  sufficient  if  authenti- 
cated by  the  signature  of  the  deputy  clerk  and  sealed 
with  the  seal  of  the  court,  ((iarueau  v.  Dozier,  100 
U.  S.  7.)  The  certificate  of  the  clerk  is  prima  facie 
eH^idence  that  the  ti'anscript  is  a  true  copy  of  all  the 
proceedings  in  the  ease.  (The  Rio  Grande,  19  Wall. 
178.)  A  failure  to  annex  to,  or  return  with,  a  writ  of 
error,  an  assignment  of  errors,  as  required  by  Rev. 
Stat.,  sec.  997,  is  no  ground  for  dismissal  for  want  of 
jurisdiction.  If  the  assignment  is  filed  in  accordance 
with  the  requirements  of  rule  21,  par.  4,  it  will  or- 
dinarily be  enough.  (School  Uist.  of  Ackley  v.  Hall, 
106  U.  S.  428.)  Where  no  assignment  of  error  was 
returned  with  the  writ  of  error  to  a  State  court,  as 
required  by  this  section,  and  no  counsel  appeared  for 
the  plaintiff  in  error,  the  judgment  will  be  afi^rmed. 
(Dagger  v.  Tayloe,  121  U.  S.  286.) 


§  530  PROCEDURE  OX    ERROR   AXD   APPEAL.  1232 

Citation.— The  citatiou  is  not  necessarily  a  part  of 
the  record;  the  presumption  is,  that  one  was  issued 
(lunerarity  v.  Byrne,  5  How.  21>5);  it  is  simply  a  no- 
tice to  the  opposite  party  to  appear  or  decline  to  ap- 
pear (Cohens  v.  Virginia,  6  Wheat.  264);  and  judg- 
ment cannot  be  given  against  him  for  liis  nonappear- 
ance (Cohens  v.  Virginia,  6  Wheat.  264);  and  a  clea'ical 
error  in  it  will  not  vitiate  the  proceedings.  (Da\'id- 
son  V.  Lainer,  4  Wall.  447.)  If  it  is  to  appear  at  the 
ciUTent  term  of  the  supreme  court  the  case  will  be 
dismissed  (Yeaton  v.  Lenox,  7  Peters,  220);  but  it 
may  be  issued  at  any  time,  provided  i.t  is  issued  and 
served  before  the  term  of  the  supreme  court  next  suc- 
ceeding the  entiy  of  the  appeal.  (Villalobos  v.  U.  S., 
6  How.  81;  Hudgins  v.  Kemp,  18  How.  530.)  When 
issued  to  one  not  a  party  to  the  suit  the  writ  will  be 
dismissed.  (Davenport  v.  Fletcher,  16  How.  142.)  So 
if  it  differs  from  the  writ  of  error  in  the  description 
of  the  person  it  will  be  dismissed  (Kail  v.  Wetmore, 
6  Wall.  451),  unless  the  misdescription  is  not  sufficient 
to  mislead  (Peale  v.  Phipps,  8  How.  256);  and  al- 
though addressed  to  the  original  pai-ty  instead  of  to 
the  administrator,  the  counsel  may  waive  the  irregu- 
lai-ity.     (Bigler  v.  Walter,  12  Wall.  142.) 

The  writ  of  error. — No  one  can  sue  out  the  writ  un- 
less he  is  a  party  to  the  judgment  (I'ayne  v.  Niles,  20 
How.  219);  but  if  a  judgment  is  joint  and  sevea-al  one 
may  sue  it  out  (Cox  v.  U.  S.,  6  Peters,  172);  but  not  if 
the  judgment  is  joint  (Williams  v.  Bank,  11  Wheat. 
414;  Wilson  v.  Fire  &  L.  Ins.  Co.,  12  Peters,  140; 
Hampton  v.  House,  13  Wall.  187;  Simpson  v.  Greeley, 
20  Wall.  152);  yet  a  party  against  whom  a  separate 
judgment  is  rendered  may  sue  it  out.  (Germain  v. 
Ma.son,  12  Wall.  25'J.)  "\^'here  parties  have  refused  to 
join  in  a  writ  of  error,  one  of  several  parties  may  sue 
It  out  (.Masterson  v.  Ilcrndou.  10  Wall.  416;  O'Dowd 
V.  RupspU.  14  Wall.  402;  but  the  irregularity  is  waived 


1233  PKOCEDXTRE  ON  EREOR  AND  APPEAL.  §  530 

by  appearance  and  defense.  (Amis  v.  Smith.  16 
Peters,  303.)  A  formal  petition  for  the  allowance  of 
a  writ  of  error  is  not  requisite  to  the  vesting  of  juris- 
diction. (Louisville  Tnist  Co.  v.  Stocliton,  41  U.  S. 
App.  579;  72  Fed.  Rep.  1.)  If  dismissed  on.  account  of 
irregularity  a  second  may  issue  (Deneale  v.  Shimp,  8 
Peters,  52R):  and  the  names  of  tlie  parties  who  apply 
must  be  set  forth.  (Deneale  v.  Shimp,  8  Peters,  526; 
Wilson  V.  Life  &  F.  Ins.  Co..  12  Peters,  140.)  The 
issue  of  a  subsequent  writ  and  citation  not  served 
cannot  prejudice  the  prior  writ  and  citation.  (David- 
son V.  Lanier,  4  Wall.  447.)  If  the  copy  lodged  with 
the  clerk  is  correct  it  is  sufBeient.  (U.  S.  v.  Six  Lots, 
1  Woods,  234;  Fed.  Oas.  No.  16299.)  Wliere  the  vrrit 
of  error  was  served  before  the  return  day,  but  not 
returned  until  after  expiration  of  the  term,  an  ap- 
pearance is  a  waiver  of  the  iiTegularity  (Wood  v. 
Lide.  4  Cranch.  180:  Piclcett  v.  Legerwood,  7  Peters, 
144);  but  if  not  returned  at  the  next  term  it  Is  null. 
(Blair  v.  Miller.  4  Dall.  21.)  In  ease  of  the  death  of 
defendant  after  entry  of  judgment,  the  suit  should  be 
revived  and  the  TVTit  of  error  sued  out.  (McClane  v. 
Boon,  6  Wall.  244.)  The  removal  of  a  case  into  the 
appellate  court  by  writ  of  en-or  puts  an  end  to  the 
jurisdiction  of  the  lower  court.  (Citizens'  Banlv  v. 
Farwell,  12  U.  S.  App.  419;  56  Fed.  Rep.  539.)  It  Is 
no  part  of  the  duty  of  the  clerk  of  a  Federal  court  to 
pi'ocure  the  allowance  of  writs  of  error  and  the  ap- 
proval of  bonds,  and  parties  who  trust  it  to  him  can- 
not complain  of  delay  therein.  (Warner  v.  Texas  Pac. 
Ry.  Co.,  2  U.  S.  App.  647;  54  Fed.  Rep.  920.) 

Prayer  for  reversal.— A  prayer  in  a  petition  for  a 
writ  of  eiTor  that  the  wi'it  may  issue  "for  the  cor- 
rection of  errors  so  complained  of."  is  in  substance  a 
prayer  for  reversal  within  the  meaning  of  the  a])ove 
section.  fSpringfield  Safe  Dep.  &  T.  Co.  v.  City  of 
Attica,  56  U.  S.  App.  330;  85  Fed.  Rep.  387.) 


§§  531-532  PROCEDURE  ON  ERROB  AND  APPEAL.         1234 

§  531.  Citation. — "WTien  the  writ  is  issued  by 
a  circuit  court  to  a  district  court,  the  citation 
shall  be  signed  by  the  judge  of  such  district  court, 
or  by  the  circuit  judge  of  such  circuit  court,  or 
by  a  justice  of  the  supreme  court,  and  the  adverse 
party  shall  have  at  least  twenty  days'  notice.  (Kev. 
Stats,  sec.  998.) 

§  532.  Citations,  supreme  court. — When  the 
writ  is  issued  by  the  supreme  court  to  a  circuit 
court,  the  citation  shall  be  signed  by  a  judge  of 
such  circuit  court,  or  by  a  justice  of  the  supreme 
court,  and  the  adverse  party  shall  have  at  least 
thirty  days'  notice;  and  when  it  is  issued  by  the 
supreme  court  to  a  State  court,  the  citation  shall 
be  signed  by  the  chief  justice,  or  judge,  or  chan- 
cellor of  such  court  rendering  the  judgment  or 
passing  the  decree  complained  of,  or  by  a  justice 
of  the  supreme  court  of  the  United  States,  and  the 
adverse  party  shall  have  at  least  thirty  days'  notice. 
(Eev.  Stats,  sec.  999.) 

Issued  to  a  State  court.— Allhouch  the  jurlffe  of  an- 
otlior  eirr-uit  lioUls  the  circuit  court,  ypt  he  cannot 
siern  a  citation  when  the  writ  is  issued  to  a  State 
court  rromi>kinR  v.  Mahonoy.  ,32  Pal.  2.31);  and  if 
signed  by  a  judge  of  the  district  court,  the  writ  will 
be  dismisse<l.  (ralmer  v.  Donner.  7  "Wall.  541.)  If 
judgment  was  rondored  by  the  appellate  court,  the 
writ  may  be  allowed  by  the  chief  justice  of  that  court 
(Aldrich  v.  Aetna  Ins.  Co.,  8  Wall.  401),  or  by  an  as- 
sociate justice  (Barteraeyer  v.  Iowa,  14  Wall.  2G);  but 
no  writ  can  issue  without  allowance  by  the  proper 
Judge,  or  the  chief  justice  of  the  supreme  court  (Glea- 
son  V.  Florida,  9  Wall.  779);  and  the  justice  has  a  dis- 


1235      PROCEDURE  ON  ERROR  AND  APPEAL.     §  532 

cretion  in  granting  or  refusing  the  application  for  a 
citation  (Hart  v.  Burnett.  20  Cal.  170;  Greely  v.  Town- 
send,  25  Cal.  604;  see  Twitcliell  v.  Com..  7  Wall.  321; 
Gleason  v.  Florida,  9  Wall.  779);  and  the  right  to  a 
writ  ought  not  to  be  finally  passed  upon  by  a  judge 
at  chambers.  (Buell  v.  Van  Ness,  8  Wheat.  312.)  A 
certificate  of  a  chief  justice  of  the  highest  court  of  a 
State  under  this  section,  allowing  a  writ  of  error  to 
such  court  from  the  supreme  court,  certifying  that  a 
Fedei'al  question  arose  and  was  determined  adversely 
to  the  plaintiff  in  error,  cannot  supply  the  want  of 
all  evidence  of  such  question  in  the  record.  (Felix  v. 
Scharnweber,  125  U.  S.  54;  see  Butler  v.  Gage,  138  U. 
S.  52.) 

Thirty  days'  notice.— A  sei-vice  of  Citation  is  neces- 
sary to  give  jurisdiction  (Dayton  v.  Lash,  94  U.  S. 
112);  but  service  on  the  attorney  or  counsel  is  suffi- 
cient (Bacon  v.  Hart,  1  Blaciv,  38;  U.  S.  v.  Curry,  6 
How.  106;  Bigler  v.  Waller,  12  Wall.  142);  but  a  ser- 
vice on  the  partner  of  counsel  is  not  sufficient  if  not 
attorney  of  record.  (Bacon  v.  Hart,  1  Blaclj,  38.)  The 
citation  may  be  served  on  the  husband  of  a  feme 
covert.  (Fairfax  v.  Fah-fax,  5  Oranch,  19.)  Thirty 
days'  notice  means  thirty  days  before  the  return  day 
of  the  writ  of  error  (Yea ton  v.  Lenox,  7  Pet.  220),  or 
that  defendant  shall  have  at  least  thirty  days'  notice 
before  being  compelled  to  go  to  a  hearing  (National 
Bank  v.  Banlv  of  Commerce,  99  U.  S.  608).  and  a  ser- 
vice of  the  citation  after  the  return  day  but  during 
the  return  term  is  sufficient.  (O'Dowd  v.  Russell.  14 
Wall.  402;  see  Dayton  v.  Lash,  94  U.  S.  112;  Railroad 
Co.  V.  Blair,  100  U.  S.  661.)  Service  of  citation  by 
leaving  a  copy  thereof  at  the  dwelling-house  or  usual 
place  of  abode  of  each  defendant  with  some  adult  per- 
son who  is  a  member  or  resident  in  the  family  is  suffi- 
cient    (Tripp  V.  Santa  Rosa  St.  Ry.  Co.,  144  U.  S. 


§  532  PROCEDrEE  ox  ERROR  AND  APPEAL.  1236 

126.)  But  depositing  a  copy  of  the  citation  In  the 
postofflce  postage  paid,  addressed  to  the  attorneys,  is 
Insufficient.  (Tripp  v.  Santa  Rosa  Street  R.  R.  Ck)., 
144  U.  S.  126.)  If  the  citation  is  not  served  thirty 
days  before  the  fii"st  day  of  the  term,  the  case  cannot 
be  talcen  up  at  tliat  term  except  by  consent.  (Welsh 
V.  Mandeville,  5  Cranch,  321:  Lloyd  v.  Alexander.  1 
Cranch,  36.5.)  The  time  and  manner  for  transmission 
of  the  record  is  regulated  by  act  of  Congress.  (U.  S. 
v.  Curry.  6  How  106;  see  Lloyd  v.  Alexander  1 
Cranch.  365.)  That  the  citation  "was  served  less  than 
thirty  days  before  the  return  day  is  not  ground  for 
dismissing  the  appeal.  (Andrews  v.  Thum,  21  U.  S. 
App.  459;  64  Fed.  Rep.  149.) 

Citation  on  writ  issued  to  circuit  court. — The 
power  to  sign  the  citation  is  not  contlned  to  the  justice 
assigned  to  the  circuit.  (Sage  v.  Railroad  Co..  96  U. 
S.  712.)  It  may  be  signed  by  one  of  the  judges  of  the 
territorial  court  (Sheppard  v.  Wilson.  5  How.  210); 
but  if  signed  by  the  clerk  of  the  circuit  court. and  not 
by  the  judge,  it  is  irregular  (U.  S.  v.  Hodge,  3  How. 
534;  Chaffee  v.  Hay  ward.  20  How.  208);  neither  th& 
signing  nor  the  service  of  the  citation  is  jurisdiction- 
al (Maltingly  v.  Northwestern  Virginia  Ry.  Co..  158 
U.  S.  53);  but  the  appearance  of  defendants  on 
error  waives  the  irregularity.  f.Aldrich  v.  Aetna  Co., 
8  Wall.  491.)  It  cannot  be  issued  by  any  judge  or 
justice  except  the  one  who  allows  the  writ  of  error. 
(Insurance  Co.  v.  Mordecai.  21  How.  19.>.)  A  district 
judsre  may  allow  tlie  appejil.  altliough  the  decree  was 
rendered  on  appeal  from  the  district  court.  (Rodd  v. 
Heartt,  17  Wall.  354.)  When  the  appeal  is  entered 
In  the  clerk's  othce  and  not  taken  in  open  court,  a 
citation  signed  by  liim  is  insuthcient.  (Villabolos  v. 
U.  S..  6  How.  81.)  And  if  the  circuit  court  disallows 
the  appeal,   the  party  presenting  a  petition    to    the 


i'2o7  PROCEDUKE  OX   ERROR  AND  APPEAL,.  §  533 

supreme  court  must  file  a  copy  of  the  record.  (Ray  v. 
Law,  3  Cranch,  179.)  When  one  of  the  judges  of  the 
circuit  comi:  has  approved  an  appeal  bond  it  is  com- 
petent under  this  section  for  another  judge  of  that 
court  who  might  have,  granted  the  appeal  to  sign  the 
citation.  (Farmei's"  Loan  &  T.  Co.  v.  Chicago  &  N. 
P.  Ry.  Co.,  34  U.  S.  App.  626;  73  Fed.  Rep.  314.) 

§  533.  Bond  in  error  and  on  appeal. — Every 
justice  or  judge  signing  a  citation  on  any  writ 
of  error  shall,  except  in  cases  brought  up  by  the 
United  States  or  by  direction  of  any  department  of 
the  Government,  take  good  and  sufficient  security 
that  the  plaintiff  in  error  or  the  appellant  shall 
prosecute  his  writ  or  appeal  to  effect,  and,  if  he 
fail  to  make  his  plea  good,  shall  answer  all  dam- 
ages and  costs,  where  the  writ  is  a  supersedeas 
and  stays  execution,  or  all  costs  only  where  it  is 
not  a  supersedeas  as  aforesaid.  (Rev.  Stats,  sec. 
1000.) 

Good  and  sufficient  security.— This  section  does  not 
prescribe  any  form  of  security:  a  bond  given  in  the 
usual  form  has  been  the  uniform  practice  (Seymour  v. 
Philips  &  C.  Const.  Co.,  7  Biss.  460;  Fed.  Cas.  No. 
12689);  but  it  must  be  taken  before  the  judge  or  jus- 
tice as  the  cleric  alone  has  no  power  to  take  it. 
(O'Reilly  v.  Edrington.  96  U.  S.  724:  National  Bank 
V.  Omaha.  96  L.  S.  787.)  The  requirement  that  the 
judge  shall  take  good  and  sufficient  security  implies 
that  he  shall  approve  the  bond,  but  an  approval  may 
be  inferred  from  The  facts  (Silver  v.  Ladd.  5  Blatchf. 
440):  and  if  the  judge  who  signs  the  citation  takes 
the  oath  of  the  sureties  to  their  sufficiency,  it  will  be 
inferred  that  he  approved  the  bond.  (Davidson  v. 
Lanier,  4  Wall.  447;  Silver  v.  Ladd,  5  Blatchf.  440.) 
Fed.  Proc.  - 104. 


§  533  PROCEDURE  ON  ERROR  AND  APPEAL.  1'_'38 

If  the  usual  affidavit  of  the  sureties  accompanies  the 
bond  at  the  time  of  its  approval  no  further  justifica- 
tion is  required  unless  on  allegation  of  their  inability. 
(Hatch  V.  Codington,  5  Blatrhf.  523:  Fed.  Cas.  No. 
6205;  see  Hobson  v.  Johnson,  4  Biss.  505;  Fed.  Cas. 
No.  6553.)  The  mere  fact  that  the  sureties  do  not  re- 
side in  the  district  is  not  a  reason  for  objecting  to  the 
bond  if  in  other  respects  unoblectionable.  (Ex  parte 
Milwaukee  R.  Co.,  5  Wall.  188.)  The  bond  may  be  ap- 
proved by  the  judge  at  chambers  (Hudgins  v.  Kemp, 
18  How.  530;  but  if  it  is  insufficient  he  cannot  at 
chambei-s  require  a  bond  for  an  additional  amount 
(Butchers'  Assn.  v.  Slaughter  House,  1  Woods,  50; 
Fed.  Cas.  No.  2234);  but  if  after  allowing  a  super- 
sedeas rule  he  finds  that  the  bond  is  insufficient,  he 
may  revolie  the  order.  (Black  v.  Zacharie,  3  How. 
483.)  The  refusal  of  the  circuit  court  to  accept  a 
supersedeas  bond  during  tha  term  does  not  neces- 
sarily take  away  the  power  to  approve  one  thereafter. 
(Sage  V.  Railroad  Co.,  96  U.  S.  712.)  A  bond  is  not 
sufficient  for  appeal  or  for  supersedeas  unless  the 
obligors  are  bound  for  the  payments  of  costs.  (Seward 
V.  Corueau,  102  U.  S.  161.) 

Approval  of  bond. — It  is  within  the  discretion  of 
the  judge  to  approve  the  bond  with  a  penalty  for  less 
than  double  the  amount.  (Hatch  v.  Ooddington.  5 
Blatchf.  523;  Fed.  Cas.  No.  6205.)  And  to  diminish 
the  amount  of  the  penalty  in  propoi'tion  to  the  amount 
of  bonds  deposited.  (Rubber  Co.  v.  Goodyear,  6  Wall. 
153.)  In  case  of  perishable  propei'ty  the  actual  loss 
may  be  taken  into  consideration.  (Duncan  v.  M.  «fe 
O.  R.  Co.,  3  Woods.  .597;  Fed.  Cas.  No.  41.39.)  The 
juflge  who  signs  the  citation  is  the  sole  and  exclusive 
judge  of  the  sufficiency  of  the  security  (Black  v. 
Zacharie,  3  How.  48.3);  as  where  damages  are  claimed 
(Ex  parte  lYench,  100  U.  S.  1);  his  action  is  conclusive 


1 


1239  PROCEDURE  ON  ERROR  AND  APPEAL.  §  533 

both  as  to  the  amount  of  the  surety  and  the  suffi- 
ciency of  the  sureties.     (Jerome  v.  McCartei',  21  Wall. 
17;  Martin  v.  Hazard  Powd.  Co.,  93  U.  S.  302;  Ex 
parte  French,  100  U.  S.  1.)    After  the  allowance  of 
the  appeal  the  question  of  the  sufficiency  of  the  se- 
curity   becomes    cognizable  in  the    supreme    court. 
(Rubber  Oo.  v.  Goodyear,  6  Wall.  153.)     The  supreme 
court  cannot  inteafere  to  enlarge  the  security  to  cover 
damages  which  plaintiff  may  recover  for  mesne  prof- 
its, or  other  losses.     (Roberts  v.  Cooper,  19  How.  373.) 
Omission  to  give  security. — The  provision  in  this 
section  is  merely  directory  to  the  judge,  and  an  omis- 
sion to  take  the  bond  does  not  necessarily  avoid  the 
writ  or  the  appeal;  the  supreme  court  may  in  such  a 
case    grant    the    proper  relief  (Martin  v.   Hunter,   1 
Wheat.  304;  Anson  v.  Blue  Ridge  R.  Co.,  23  How.  1; 
Davidson  v.  Lanier,  4  Wall.  447;  Seymour  v.  Freer, 
5  Wall.  822;  but  see  Boyce  v.  Grandy,  6  Peters,  777); 
and  the  party  may  be  allowed  time  to  give  the  bood 
(Anson  v.  Blue  Ridge  R.  Co.,  23  How.  1;    Brobst  v. 
Brobst,  2  Wall.  96;  Seymour  v.  Freer,  5  Wall.  822.)  If 
the  record  shows  no  security  taken  the  appeal  will  be 
dismissed  (Boyce  v.  Grandy,  6  Peters,  777);  but  the 
presumption  is,  that  the  judge  who  signed  the  citation 
took    the  security  as  required    by  law.     (Martin  v. 
Hunter,  1  Wheat.  304.)     The  objection  that  the  bond 
was  given  by  only  one  of  several  appellants  may  be 
taken  by  a  preliminary  motion  to  dismiss.     (Mande- 
ville  V.  lliggs,  2  Peters,  482.)     The  defendant  must 
procure    sureties  although    he  is  amply  responsible 
(Amer.  Pave.  Oo.  v.  Elizabeth,  6  Off.  Gaz.  772;  Fed. 
Cas.  No.  310);  but  the  law  does  not  require  that  the 
security  shall  be  in  any  fixed  proportion  to  the  de- 
cree.    (Amer.  Pave.  Oo.  v.  Elizabeth.  6  Off.  Gaz.  772, 
Fed.  Cas.  No.  310.)     In  a  proceeding  on  the  relation, 
of  a  party  the  bond  may  run  to  the  State  or  to  the 
relator.     (Spalding    v.     People,     2     How.     66.)     The 


§  533  PROCEDURE  ON  ERROR  AND  APPEAL.  1240 

amount  recoverecl  on  execntion  is  not  to  be  appor- 
tiont'd  where  the  unpaid  balance  exceeds  the  penalty 
of  the  bond.  (Ives  v.  Mercliants'  Bank,  12  How.  1.59.) 
The  proceeds  of  the  sale  must  be  first  applied  to  the 
decree  and  the  sureties  left  liable  for  the  balance, 
(Sessions  v.  Pintard,  18  How.  106.)  The  omission  to 
give  the  security  as  provided  in  this  section  is  an  ir- 
regularity merely,  which  may  be  subsequently  cured. 
(Brown  v.  McConnell,  124  U.  S.  489;  Stewart  v.  Mas- 
terson,  124  U.  S.  493.)  The  circuit  court  has  no  au- 
thority to  grant  an  appeal  without  requiring  bond  for 
costs.     (In  re  NeAvman,  79  Fed.  Rep.  615.) 

Security  on  appeal.— The  appeal  bond  must  be 
given  to  the  opposite  party  (Bigler  v.  Waller,  12  Wall. 
142),  or  it  will  be  dismissed  (Davenport  v.  Fletcher, 
16  How.  142);  yet  if  irregular  in  this  regard,  time 
may  be  allowed  to  file  a  correct  bond.  (Biglei*  v. 
Waller,  12  Wall.  142.)  Appellant  must  either  give 
good  and  sufficient  security  to  answer  all  damages 
and  costs,  or  if  he  does  not  wish  to  supei-sede  execu- 
tion, sutficient  security  to  answer  for  costs  in  case  of 
affirmance.  (Hayford  v.  Griffith,  3  Blatchf.  34;  Fed. 
Cas.  No.  6263.)  A  condition  to  the  effect  that  appel- 
lant will  pay  the  damages  and  costs  and  damages 
rendered  and  to  be  rendered  till  decree  is  affirmed, 
covers  the  requirements  of  the  statute  (Gay  v.  Par- 
part,  101  IT.  S.  391);  but  it  need  not  be  sufficient  to 
secure  interest  pending  ai)p("al.  (Jerome  v.  McCarter, 
21  Wall.  17.)  When  talcen  from  an  order  directing  the 
sale  of  property,  the  penalty  will  be  little  more  than 
interest  on  the  debt  while  the  sale  of  the  property 
was  suspended.  (Wilnier  v.  Atlanta  etc.  Co.,  2  Woods. 
447;  Fed.  Cas.  No.  17776.)  When  the  property  neces- 
sarily follows  the  writ,  indemnity  to  an  amount  suffi- 
cient to  secure  the  sum  received  for  use  of  the  prop- 
erty and  for  incidental  items  is  sufficient.     (French  v. 


1241  PROCEDURE  ON  ERROR  AND  APPEAL.  §  533 

Shoemaker,  12  Wall.  86.)  A  defendant  in  an  equity 
suit  may  be  compelled  to  pay  the  sum  allowed  to  the 
master  as  compensation  for  his  services,  although  an 
appeal  is  duly  taken.  (Myers  v.  Dunbar,  12  Blatchf. 
380;  Fed.  Gas.  No.  9990.)  If  a  bill  is  dismissed  with- 
out qualification,  a  preliminary  injunction  falls,  al- 
though an  appeal  is  taken.  (Eureka  Consol,  Min.  Co. 
V.  Richmond  Min.  Co.,  5  Saw.  121;  Fed.  Cas.  No. 
4549.) 

On  writ  of  error.— If  the  judgment  is  severable, 
each  may  file  a  separate  bond.  (Ex  parte  French, 
100  U.  S.  1.)  When  it  operates  as  a  supersedeas  the 
security  must  be  sufficient  to  satisfy  the  whole 
amount  of  the  judgment  (Catlett  v.  Brodie,  9  Wheat. 
55.3;  Tucker  v.  Lee,  3  Cranch  C.  C.  684;  Fed.  Cas.  No. 
14221;  Bank  v.  Swann,  4  Cranch  G.  C.  139;  Fed.  Gas. 
No.  902);  but  see  Kenner  v.  Bank,  2  Cranch  C.  G.  310; 
Fed.  Cas.  No.  11699);  and  the  judge  cannot  exercise 
any  discretion.  (Stafford  v.  Union  Bank,  16  How.  135; 
17  How  275.)  The  condition  of  the  bond  is  alterna- 
tive that  plaintiff  in  error  either  prosecutes  his  writ 
to  effect  or  answers  all  damages  and  costs.  (Tucker 
V.  Lee,  3  Cranch  C.  C.  684;  Fed.  Gas.  No.  14221.)  A 
writ  of  error  becomes  per  se  a  supersedeas  upon  com- 
pliance with  the  statute  (Tiernan  v.  Booth,  4  Fed. 
Rep.  620;  9  Biss.  499;  Booth  v.  Tiernan,  109  U.  S. 
205;  Arnold  v.  Frost,  9  Ben.  267;  Fed.  Gas.  No.  558), 
if  a  citation  is  issued  and  served  before  the  next  en- 
suing term  of  the  supreme  court  (Arnold  v.  Frost,  9 
Ben.  267;  Fed.  Cas.  No.  558),  where  nothing  appears 
in  the  record  to  tlie  contrary  (French  v.  Shoemaker, 
12  Wall.  86);  but  if  the  value  of  the  matter  in  dispute 
does  not  appear  in  the  record  it  cannot  operate  as  a 
supei'sedeas.  (Williamson  v.  Kineaid,  4  Dall.  20.)  A 
writ  of  error  sued  out  in  a  criminal  case  in  a  State 
court  stays  execution  of  the  sentence.  (Bryan  v. 
Bales,  12  Allen,  201.)     A  State  court  cannot  determine 


§  533  PROCEDURE  ON  ERROR  AND  APPEAL.  l'J42 

whether  a  writ  of  error  operates  as  a  supersedeas  or 
not.  (Ex  parte  Dunn,  6  S.  C.  307.)  The  fact  that  a 
citation  was  not  presented  to  and  signed  by  the  judge 
within  sixty  days  will  not  necessarily  prevent  a  writ 
of  error  from  operating  as  a  supersedeas.  (Tiernan 
V.  Booth,  4  Fed.  Rep.  620;  9  Biss.  499;  Booth  v.  Tier- 
nan,  109  U.  S.  205.) 

Appeal— Supersedeas.— If  a  bond  given  on  an  ap- 
peal from  a  foreclosure  decree  is  merely  for  costs, 
it  will  not  stay  the  sale  (Stafford  v.  Union  Bank,  16 
How.  135;  17  How.  275;  Orchard  v.  Hughes,  1  Wall. 
73);  but  the  appeal  will  not  be  dismissed  for  that 
reason.  (Orchard  v.  Hughes,  1  Wall.  73.)  An  appeal 
from  a  dec-ree  disallowing  an  injunction  against  a 
judgment  at  law  does  not  supersede  the  judgment 
(Grundy  v.  Young,  1  Cranch  C.  C.  443;  Fed.  Cas.  No. 
5850.)  If  the  property  is  in  charge  of  a  receiver,  an 
appeal  opei'ating  as  a  supersedeas  will  not  entitle  the 
party  to  a  delivery  of  the  property  to  him.  (Schenk 
V.  Peay,  1  Dill.  267;  Fed.  Cas.  No.  12451.)  The  super- 
sedeas is  but  an  appurtenant  to  the  appeal  and  ends 
when  the  appeal  becomes  inoperative  as  by  neglect 
to  file  the  transcript.  (Gillette  v.  Bullard,  20  Wall. 
571.)  Appealing  and  giving  security  operate  as  a 
stay  of  proceedings.  (Ilscher  v.  Hayes,  7  Fed.  Kej). 
99;  19  Blatchf.  184.)  The  condition  of  the  bond  that 
appellants  "shall  duly  prosecute  their  said  appeal  with 
effect,  and,  moreover,  pay  the  amount  of  costs  and 
damages  rendered  and  to  be  rendered  in  ca.se  the  de- 
cree shall  be  affirmed"  meets  all  the  requirements  of 
this  section.  (Gay  v.  Parpart,  101  U.  S.  391;  see  Bab- 
bitt V.  Finn,  101  U.  S.  7.)  The  court  may  modify  a 
supersedeas  so  as  to  allow  a  sale  of  mortgaged  prop- 
erty. (Williams  v.  Clafiin,  103  U.  S.  753;  following 
Jerome  v.  McCarter,  21  Wall.  31.) 


1243  PKOCEDURE  ON  ERROR  AND  APPEAL.  §  533 

Effect  of  supersedeas.— The  only  effect  of  a  super- 
sedeas is  to  prevent  further  proceedings  in  the  lower 
court;  it  does  not  operate  to  nullify  or  to  reverse  an  in- 
junction. (Slaughter  House  Cases,  10  Wall.  27o; 
Whitney  v.  Mowry,  2  Bond,  45;  Fed.  Gas.  No.  17592.) 
After  appeal  in  a  prize  ease  the  district  court  can 
malie  no  order  concerning  the  property  (The  Petei'- 
hoff,  Blatchf.  Prize,  620;  Fed.  Oas.  No.  11025);  and 
no  sale  of  the  property  can  take  place  (The  Sunbeam, 
Blatchf.  Prize,  638;  Fed.  Gas.  No.  13614),  nor  can  the 
court  attach  for  contempt  for  neglecting  to  comply 
with  a  judgment.  (Frazee  v.  Gordozo,  6  S.  G.  815.) 
The  supersedeas  operates  to  prevent  the  payment  out 
of  a  fund  in  court.  (Goddard  v.  Ordway,  94  U.  S. 
672.)  If  an  execution  is  improperly  issued  where 
there  is  a  supersedeas  the  circuit  court  may  on  mo- 
tion quash  it  (Stockton  v.  Bishop,  2  How.  74);  but  if 
the  bond  is  filed  after  execution  of  the  writ  the  court 
will  not  restore  the  party  to  his  prior  rights.  (Board 
v.  Gorman,  19  Wall.  661.)  A  judgment  in  a  State 
court  awarding  a  peremptory  mandamus  cannot  be 
executed  if  defendant  file  a  bond.  (State  v.  Johnson, 
29  La.  Ann.  399;  U.  S.  v.  Columbian  Ins.  Go.,  2  Granch 
C.  G.  2©6;  Fed.  Gas.  No.  14840.) 

Liability  of  surety.— The  sureties  become  liable  If 
judgment  is  affirmed  in  the  circuit  court,  and  they  are 
not  discharged,  although  the  case  is  taken  to  the  su- 
preme court,  and  a  new  bond  is  given.  (Babbitt  v. 
J"'inn,  101  U.  S.  7.)  And  if  judgment  is  affirmed  an 
action  lies  on  the  bond  without  first  issuing  execution 
against  defendant  (Babbitt  v.  Finn,  101  U.  S.  7);  but 
on  the  action  there  must  be  an  allegation  of  a  single 
breach  denying  each  alternative  that  the  writ  was  not 
prosecuted  with  effect,  nor  did  the  plaintiff  in  eiTor 
answer  the  damages  and  costs,  which  must  be  spe- 
cially set  forth.     (Tucker    v.    Lee,  3    Granch  G.    O. 


§§  534-535  PROCEDURE  ON   ERROR  AND  APPEAL.  12-44 

684,  Fed.  Cas.  No.  14221:  Bank  v.  Swann,  4  Crauch 
C.  C.  139,  Fed.  Can.  No.  902.)  Interest  on  the  penalty 
from  the  time  of  demand  may  be  recovered.  (Ives  v. 
Merchants'  Bank,  12  How.  159.)  Under  this  section 
the  damages  recoverable  on  an  appeal  bond  are  such 
only  as  result  from  the  delay  in  the  sale  of  the  prop- 
erty, and  do  not  include  accumulated  interest.  (Su- 
pervisoi-s  v.  Kennicott,  103  U.  S.  554.)  Sureties  ou 
an  appeal  bond  will  be  protected  when  they  have 
acted  in  good  faiith.  (Bayliss  v.  Lafayette  etc.  R. 
Co.,  9  Biss.  90,  Fed.  Cas.  No.  1141.) 

§  534.  No  bond  required  of  United  States. — 
"Whenever  a  writ  of  error,  appeal,  or  other  process 
in  law,  admiralty,  or  equity  issues  from  or  is 
brought  up  to  the  supreme  court,  or  a  circuit 
court,  either  by  the  United  States  or  by  direction 
of  any  department  of  the  Government,  no  bond, 
obligation,  or  security  shall  be  required  from  the 
United  States,  or  from  any  party  acting  under 
the  direction  aforesaid,  either  to  prosecute  said 
suit,  or  to  answer  in  damages  or  costs.  In  case  of 
an  adverse  decision,  such  costs  as  by  law  are  taxa- 
ble against  the  United  States,  or  against  the  party 
acting  by  direction  as  aforesaid,  shall  be  paid  out 
of  the  contingent  fund  of  the  department  under 
whose  directions  ^he  proceedings  were  instituted. 
(Eev.   Stats,  sec.   1001.) 

Note.— No  bond  in  suing  out  an  attachment  need 
be  given  by  the  United  States.  (U.  S.  v.  Ottman, 
1  Iluglies,  313,  21  Int.  Rev.  Rec.  294;  Fed.  Cas.  No. 
1.^)977.) 

^  535.  Writs  of  error  to  district  courts  acting 
as  circuit  courts. — Writs  of  error  sliall  be  prose- 


1245  PROCEDURE  ON  ERROR  AND  APPEAL.  §  536 

cuted  from  the  final  judgments  of  district  courts 
acting  as  circuit  courts  to  the  supreme  court  in  the 
same  manner'  as  from  the  final  judgment  of  cir- 
cuit courts.     (Eev.  Stats,  sec.  1002.) 

§  536.  Writs  of  error  to  State  courts. — Writs 
of  error  from  the  supreme  court  to  a  State  court, 
in  cases  authorized  by  law,  shall  be  issued  in  the 
same  manner,  and  under  the  same  regulations, 
and  shall  have  the  effect,  as  if  the  judgment  or 
decree  complained  of  had  been  rendered  or  passed 
in  a  court  of  the  United  States.  (Rev.  Stats,  sec. 
1003.) 

Error  to  State  courts.— A  writ  of  error  will  not  be 
allowed  on  application  of  an  attorney  not  acting  for 
appellant  directly  (Ex  parte  Dorr,  3  How.  10.3);  and 
It  must  be  brought  In  the  name  of  the  claimant  who 
appeared  to  defend  the  action  (The  Burns,  9  Wall. 
237);  and  issues  under  "regulations"  of  the  United 
States  courts  (Buell  v.  Van  Ness,  8  Wheat.  312);  and 
be  allowed  by  the  circuit  judge,  and  bear  tlie  seal 
of  the  court  and  signature  of  the  clerk.  (Buell  v. 
Van  Ness,  8  .Wheat.  312.)  It  need  not  on  its  face 
purport  to  be  issued  upon  a  final  judgment  of  the 
highest  court  in  the  State,  for  it  is  the  act  of  the 
court,  and  its  object  is  to  bring  up  the  record,  and  cite 
the  parties.  (Buell  v.  Van  Ness,  8  Wheat.  312.)  A 
mistalve  in  the  date  does  not  viti  .te  it  (O'Dowd  \. 
Russell,  14  Wall.  402);  nor  is  it  objectionable  that  it 
bears  teste  on  the  date  of  its  issue.  (Atherton  v. 
Fowler,  91  U.  S.  143.)  As  to  the  return  of  the  writ, 
the  law  malvcs  no  distinction  between  criminal  and 
civil  cases.  (Worcester  v.  State,  G  Peters.  .515.)  If  the 
clerk  omits  to  make  return,  a  rule  of  court  may  re- 
quire him  to  make  return  on  the  first  day  of  the  next 
term,  or  show  cause  or  excuse  for  his  neglect.     (U. 


§  537  PROCEDUKE  ON  ERROR  AND  APPEAL.  1246 

S.  V.  Booth,  18  How.  476.)  If  the  record  is  duly 
certified  by  the  clerk  of  the  State  court,  authenti- 
cated by  seal  of  the  court,  and  annexed  to  the  writ, 
it  is  sufficient  (JNIartiu  v.  Hunter,  1  Wheat.  304;  Wor- 
cester V.  State,  6  Peters,  515),  although  the  certificate 
of  the  judge  is  not  appended  (Worcester  v.  State.  6 
Peters,  515),  if  it  contains  the  judgment  duly  certified, 
over  which  the  supreme  court  can  exercise  jurisdic- 
tion.   (Webster  v.  Reid,  11  How.  437.) 

§  537.  Writs  of  error  returnable  to  the  su- 
preme court. — Writs  of  error  returnable  to  the 
supreme  court  may  be  issued  as  well  by  the  clerks 
of  the  circuit  courts,  under  the  seals  thereof,  as 
by  the  clerk  of  the  supreme  court.  When  so  is- 
sued they  shall  be,  as  nearly  as  each  case  may  ad- 
mit, agreeable  to  the  form  of  a  writ  of  error  trans- 
mitted to  the  clerks  of  the  several  circuit  courts 
by  the  clerk  of  the  supreme  court,  in  pursuance 
of  section  nine  of  the  Act  of  May  eight,  seventeen 
hundred  and  ninety-two,  chapter  thirty-six.  (Rev. 
Stats,  sec.  1004.) 

Return  of  writ. — The  vrit  of  error  is  the  writ  of  the 
supreme  court  (Mussina  v.  Cavazos,  G  Wall.  35.5);  and 
a  clei'k  of  the  circuit  court  has  no  right  to  change  its 
form  without  consent  of  tlie  supreme  court  justices. 
(Barton  v.  Forsyth,  5  Wnll.  100.)  It  need  not  be  allow- 
ed by  nny  judge;  that  it  is  issued  and  served  by  copy 
is  sufficient.  (Davidson  v.  Lanier,  4  Wall.  447.)  When 
issued  to  the  supreme  court  of  a  territory,  it  may  be 
issued  by  the  clerk  of  the  territorial  court.  (Sheppard 
V.  Wilson,  5  How.  210.)  Prior  to  the  adoption  of  this 
section  a  clerk  of  the  circuit  court  could  not  issue 
the  writ    (West  v.  Barnes,  2  Uall.  401.) 


1247  PROCEDURE  ON   ERROR  AND   APPEAL.  §  538 

§  538.  Amendment  of  writ  of  error. — The  su- 
preme court  may,  at  any  time,  in  its  discretion 
and  upon  such  terms  as  it  may  deem  just,  allow 
an  amendment  of  a  writ  of  error,  when  there  is 
a  mistake  in  the  teste  of  the  writ,  or  a  seal  to 
the  writ  is  wanting,  or  when  the  writ  is  made  re- 
turnable on  a  day  other  than  the  day  of  the  com- 
mencement of  the  term  next  ensuing  the  issue  of 
the  writ,  or  when  the  statement  of  the  title  of  the 
action  or  parties  thereto  in  the  writ  is  defective, 
if  the  defect  can  be  remedied  by  reference  to  the 
accompanying  record,  and  in  all  other  particulars 
of  form;  provided,  the  defect  has  not  prejudiced, 
and  the  amendment  will  not  injure,  the  defend- 
ant in  error.     (Eev.  Stats,  sec.  1005.) 

Amendment.— This  section  is  applicable  to  the  cir- 
cuit court  of  appeals  (Cotter  v.  Alabama  G.  S.  R.  Co., 
22  U.  S.  App.  372;  61  Fed.  Rep.  747).  Before  the 
adoption  of  this  section  a  writ  of  error  could  not  be 
amended.  (Insurance  Co.  v.  Mordecai,  21  How.  19.5; 
Porter  v.  Foley,  21  How.  393;  Hodge  v.  Williams.  22 
How.  87;  Washington  v.  Dennison,  6  Wall.  495.)  The 
right  to  amend  under  this  section  is  not  absolute,  but 
is  within  the  discretion  of  the  court  (Pearson  v.  Yew- 
dall,  95  U.  S.  294);  and  where  the  record  presents  no 
question  which  has  not  been  previously  decided,  leave 
to  amend  will  not  be  granted.  (Pearson  v.  Yewdall, 
95  U.  S.  294.)  A  writ  of  error  without  a  seal  is  void. 
(Washington  v.  Dennison,  6  Wall.  495.)  But  it  may  be 
amended  by  affixing  the  seal  (Cotter  v.  Alabama  G. 
S.  R.  Co.,  22  U.  S.  App.  372;  61  Fed.  Rep.  747.)  If 
the  writ  is  not  tested  as  of  a  preceding  term  the  teste 
may  be  amended  by  the  record  of  duration  of  that 
term  (Course  v.  Stead.  4  Dall.  22);  but  the  mere  fact 
that  it  is  dated  before  the  entry  of  the  judgment  will 


§538  PROCEDURE  ON  ERROR  AND  APPEAL.  1248 

not  vitiate  it  if  served  after  that  time.     (O'Dowd  v. 
Russell,  14  Wall.  402.)     If  there  is  sufficient  in  the 
record  to  amend  by,  an  omission  may  be  amended. 
(Course  v.  Stead,  4  Dall.  22.)     So  if  the  names  of  par- 
ties are  not  set  forth  in  the  writ  (Deueale  v.  Stump, 
8  Peters,  520),  or  if  an  appeal  is  talieu  in  the  name 
of  the   firm   instead   of  the  name  of  the   individual 
member  of  the  tirm.     (Moore  v.   Simouds.  100  U.  S. 
145.)     The  name  of  the  present  administrator  of  an 
estate  as  plaintiff  in  error  may  be  inserted  in  place  of 
the  former  administrator  (Walton  v.  Marietta  Chair 
Co.,  157  U.  S.  342).     If  the  writ  is  made  returnable 
on  the  wrong  day  (National  Bk.  v.  Bank  of  Commerce, 
99  U.  S.  608;  Hampton  v.  Rouse.  15  Wall.  684),  or  the 
day  is  described   imperfectly   (McVeigh   v.   U.    S.,   8 
Wall.  640),  or  left  blank  (Mossman  v.   Higginsou,  4 
Dall.  12),  it  may  be  amended  by  inserting  the  proper 
return  day  (Atliorton  v.  Fowler,  91  U.  S.  143);  and  a 
new  citation  will  be  issued.     (National  Bk.  v.  Bank 
of  Commerce,  99  TJ.  S.  608;  Dayton  v.  Lash.  94  U.  S. 
112.)    Where  the  record  shows  who  are  the  members 
of  the  partnership,  and  an  appeal  has  been  taken  in 
the  name  of  the  firm,  the  defect  may  be  cured  by 
amendment.     (Moore  v.  Simonds,  100  U.  S.  145.)     A 
paper  purporting  to  be  a  writ  of  error,  but  not  being 
such,    is   not   susceptible   of   amendment   under   this 
section.     (Bondurant  v.  Watson,  1U3  U.  S.  281.)     Un- 
der section  1005  of  the  Revised  Statutes,  being  section 
3  of  the  act  of  June  1,  1872  (cliap.  255,   17  Stat,  at 
L.  19()),  this  court  may,  at  any  time,  in  its  discretion 
and  ui)on  such  teriiis  as  it  may  deem  just,  allow  an 
amendment  of  a  writ  of  error  "when  the  statement 
of  the  title  of  the  action  or  parties  thereto  in  the 
writ  is  defective,  if  the  defect  can  be  remedied  1)y 
reference  to  the  accomi>anying  record,"  "provide<l  the 
defect  has  not  prejudiced, and  the  amendment  will  not 
injure,  the  defendant  in  eiTor."    (Estes  v.  Trabue,  128 


( 


1249         PKOCEDUBE  ON  ERROR  AND  APPEAL.  §§  539-540 

U.  S.  225.)  In  Moore  v.  Simouds,  100  U.  S.  145,  an 
appeal  was  taken  in  the  name  of  a  firm,  but  it  was 
talven  wlien  section  1U05  was  in  force.  This  court 
said:  "We  are  clear,  therefore,  that  the  defect  is  one 
that  may  be  amended  under  the  law  as  it  now  stands, 
and  for  this  reason  we  will  not  dismiss  the  appeal." 
(Estes  V.  Trabue,  128  U.  S.  225.) 

§  539,  Amendments  in  prize  appeals. — The  su- 
preme court  may,  if  in  its  judgment  the  pur- 
poses of  justice  require  it,  allow  any  amendment, 
either  in  form  or  substance,  of  any  appeal  in  prize 
causes.  [See  sec.  4636.]     (Rev.  Stats,  sec.  1006.) 

Note.— An  appeal  may  be  allowed  whenever  the 
purposes  of  justice  require  it.  (La  Nuestra  Senora 
de  Hegla,  17  Wall.  29.) 

§  540.  Supersedeas. — In  any  case  where  a  writ 
of  error  may  be  a  supersedeas,  the  defendant  may 
obtain  such  supersedeas  by  serving  the  writ  of  er- 
ror, by  lodging  a  copy  thereof  for  the  adverse 
party  in  the  clerk's  office  where  the  record  re- 
mains, within  sixty  days,  Sundays  exclusive,  after 
the  rendering  of  the  judgment  complained  of, 
and  giving  the  security  required  by  law  on  the  is- 
suing of  the  citation.  But  if  he  desires  to  stay 
process  on  the  judgment,  he  may,  having  served 
his  writ  of  error  as  aforesaid,  give  the  security  re- 
quired by  law  within  sixty  days  after  the  rendi- 
tion of  such  judgment,  or  afterward  with  the  per- 
mission of  a  justice  or  judge  of  the  appellate  court. 
And  in  such  cases  where  a  writ  of  error  may  be  i 
supersedeas,  executions  shall  not  issue  until  the 
expiration  of  ten  days.  (Rev.  Stats,  sec,  1007,  18 
U.  S.  Stats.  318.) 
Fed.  Pkoc— 105. 


§  540  PKOCEDURE  ON   EKROR  AND  APPEAL.  1250 

Supersedeas. — A  writ  of  error  served  after  the  re- 
turu  day  is  void  (Wood  v.  Lide,  4  Cranch,  180),  and 
if  sued  out  after  expiration  of  tlie  sixty  days  it  can- 
not operate  as  a  supersedeas.  (Grundy  v.  Young,  1 
Cranch  C.  C.  443;  Fed.  Cas.  No.  5850;  Hogan  v.  Ross, 
11  How.  294;  Saltmarsh  v.  Tuthill,  12  How.  387.)  So 
if  informal  it  ceases  to  operate  as  a  supersedeas. 
(Hogan  V.  Ross,  11  How.  2l>4.)  The  supersedeas  is  a 
statutory  remedy,  and  can  only  be  obtained  by  a 
strict  compliance  with  the  statute.  (Sage  v.  Central 
R.  R.  Co.,  93  U.  S.  412.)  The  writ  will  not  operate  as 
a  supersedeas  unless  sued  out  and  a  copy  tiled  in  the 
clerli's  otfice.  (Moore  v.  Dunlop,  1  Cranch  C.  C.  180; 
Fed.  Cas.  9759;  Ex  parte  Ben,  1  Cranch  C.  C.  532; 
Fed.  Cas.  No.  1285;  Railroad  Co.  v.  Harris.  7  Wall. 
574;  O'Dowd  v.  Russell,  14  Wall.  402;  Kitchen  v. 
Randolph,  93  U.  S.  80;  contra.  Telegraph  Co.  v.  Eyser, 

19  Wall.  419.)  Such  service  as  is  required  on  writ 
of  error  is  not  required  in  case  of  appeal.  (Bigler 
V.  Waller,  12  Wall.  142.)  Where  the  appeal  is  im- 
properly refused,  judgment  on  a  mandamus  may  di- 
rect that  the  security  for  a  supersedeas  be  accepted 
as  of  the  date  of  the  appeal.  (Ex  parte  Railroad 
Co.,  95  U.  S.  221.)  And  an  appeal  subsequently  al- 
lowed vacates  all  acts  done  before  its  allowance. 
(Tliornl)ill  v.  Bank,  4  Am.  L.  T.  24fi;  Fed.  Cas.  No. 
l.';99l.)  If  the  approval  of  a  supersedeas  bond 
is  obtained  l)y  fraud  it  may  be  vacated  (Rail- 
road Co.  v.  Schutte,  100  U.  S.  644),  and  no  no>v 
bond  will  be  taken.  (Railroad  Co.  v.  Schutte, 
100  U.  S.  G44.)  Tinder  the  Judiciary  Act  of  1789 
and  the  act  of  1803,  an  appeal  or  writ  of  enor, 
to  ojKn-ate  sus  a  supersedeas,  must  be  taken  and  se- 
ciirity  given  within  ten  days  after  the  rendition  of 
tlie  judgment  or  decree.  (Adams  v.  Law,  16  How. 
144;  Iludgins  v.  Kemp,  18  How.  530;  Silsby  v.  Foot, 

20  How.  290;  Washington  v.  Dennison,  6  Wall.  495; 


1251  PROCEDURE  ON  ERROR  AND  APPEAL.  S  540 

Patterson  v.  De  La  Roade,  8  Wall.  293;  Washington 
etc.  R.  R.  Co.  V.  Bradleys,  7  Wall.  575.)  Nor  could 
the  circuit  court  award  a  supersedeas  unless  the  writ 
of  error  is  taken  within  such  time.     (Hogan  v.  Ross, 

II  How.  294.)  Under  Rev.  Stat,  sec.  1007,  as  amended 
by  18  Stat,  at  L.  318,  a  supersedeas  cannot  be  al- 
lowed where  an  appeal  was  not  taken  or  a  writ  of 
error  suea  out  and  served  within  sixty  days,  Sundays 
exclusive,  after  judgment.  (Kitchen  v.  Randolph,  93 
U.  S.  86;  Sage  v.  Central  R.  Co.,  93  U.  S.,  412;  Rodd 
V.  Heartt,  17  Wall.  354;  Texas  &  P.  R.  Co.  v.  Murphy, 

III  U.  S.  488;  Wurts  v.  Hoagland,  105  U.  S.  701; 
Peugh  V.  Davis,  110  U.  S.  227.)  To  make  a  nunc  pro 
tunc  order  for  a  supersedeas  effectual,  it  must  appear 
that  the  delay  was  the  act  of  the  court,  and  that 
injustice  will  not  be  done.  (Sage  v.  Central  R.  R. 
Co.,  93  U.  S.  412.)  The  service  of  the  writ  of  error 
must  be  within  sixty  days,  "Sundays  excluded,"  and 
security  must  be  given  "within  sixty  days"  after  the 
rendition  of  such  judgment,  or  afterward  by  special 
permission.  This  can  only  mean  that  he  may  give  the 
security  and  so  obtain  the  supersedeas  within  the 
same  sixty  days  which  is  allowed  him  to  serve  the 
writ.  (Town  of  Danville  v.  Brown,  128  U.  S.  503.) 
This  section  does  not  apply  to  judgments  in  the  high- 
est court  of  a  State.  (Foster  v.  Kansas,  112  U.  S. 
201.)  It  refers  only  to  judgments  and  decrees  in  the 
courts  of  the  United  States,  and  not  to  State  courts. 
(Doyle  V.  Wisconsin,  94  U.  S.  50;  Foster  v.  Kansas, 
112  U.  S.  201.)  A  supersedeas,  in  order  to  stay  pro- 
ceedings on  an  execution,  must  come  before  a  levy 
is  made.     (Boyle  v.  Zacharie,  6  Pet.  MS.) 

Time  to  file  security. — Time  is  an  essential  element 
which  cannot  be  disregarded,  and  to  make  a  nunc 
pro  tunc  order  effectual  it  must  appear  that  the  delay 
was  the  fault  of  the  court,  and  not  of  the  parties. 
(Sage  V.  Central  R.  R.  Co.,  93  U.  S.  412.)     Where  the 


8  540  PROCEDURE  ON  ERROR  AND  APPEAL.  1252 

security  of  a  supersedeas  bond  becomes  impaired,  tlie 
supreme  court  will  order  and  adjudge  it  to  be  made 
sufficient  by  additional  security.  (Williams  v.  Clafiin, 
103  U.  S.  753;  Jerome  v.  McCarter,  21  Wall.  17.)  The 
time  begins  to  run  from  tlie  announcement  of  the  de- 
cision, although  the  record  is  not  signed  till  next  day. 
(Board  v.  Gorman,  19  Wall.  6(31.)  The  right  of  appeal 
is  determined  by  the  entry  of  the  final  decree,  al- 
though entered  as  of  a  prior  date  (Rubber  Co.  v.  Good- 
year, 6  Wall.  153);  but  not  till  the  actual  filing  of  the 
decree  (Seymour  v.  Freer,  5  Wall.  822);  so  a  judgment 
is  not  final  till  it.  is  entered  in  the  court.  (Green 
V.  Van  Buskirk,  3  Wall.  448.)  So  the  time  begins  to 
run  from  entry  of  the  decree,  although  it  provides 
for  the  taxation  of  costs,  which  are  not  taxed  till 
after  the  time  allowed  for  an  appeal  (Craig  v.  The 
Hartford,  1  McAll.  91;  Fed.  Cas.  No.  3333);  but  if  the 
court  entertains  a  motion  to  open  the  decree  the  time 
does  not  begin  to  run  until  the  motion  is  disposed  of. 
(Brockett  v.  Brockett,  2  How.  238;  Railroad  Co.  v. 
Bradleys,  7  Wall.  575;  Memphis  v.  Brown,  94  U.  S. 
715.)  Although  the  writ  is  served  before  the  expira- 
tion of  the  sixty  days,  yet  if  not  sealed  till  after  that 
time  it  cannot  operate  as  a  supersedeas.  (Washing- 
ton V.  Dennison,  6  Wall.  495.)  An  appeal  taken  after 
sixty  days  cannot  be  allowed  nunc  pro  tunc.  (Sage 
V.  Central  R.  R.  Co.,  93  U.  S.  412;  The  Roanoke,  3 
Blatchf.  390;  Fed.  Cas.  No.  11875.)  Where  a  motion 
for  a  new  trial  is  filed  the  time  begins  to  run  from 
the  day  it  is  overrxiied.  (Rutherford  v.  Penn.  Mut.  L. 
Ins.  Co.,  1  Fed.  Rep.  45(3;  1  McCrary,  120;  see  Hatch 
V.  Coddiuglon,  5  Blatchf.  523;  Fed.  Cas.  No.  G205.) 
The  circuit  court,  during  the  term,  may  strike  out  and 
enter  a  judgment  anew  for  the  purpose  of  allowing 
a  writ  of  <'rror  to  operate  as  a  supersedeas  (Memphis 
V.  Brown,  94  U.  S.  715),  but  if  it  is  improperly  award- 
ed the  motion    should    be    to    discharge  the  order 


1253  PKOCEDURE  ON  EKROK  AND  APPEAL.  §  540 

(Hudgins  v.  Kemp,  18  How.  530);  and  although  an 
order  has  all  the  requisites  of  a  decree,  yet  if  followed 
by  a  decree  the  appeal  will  be  regarded  as  taken 
from  the  latter  (Rubber  Co.  v.  Groodyear,  6  Wall.  15^i), 
and  if  it  refers  the  Case  to  a  commissioner  and  an- 
other decree  is  entered,  the  time  runs  from  either 
decree.  (Eodd  v.  Heartt,  17  Wall.  354.)  If  an  inter- 
venor  moves  to  set  aside  a  decree  the  motion  does 
not  suspend  the  decree.  (Sage  v.  Central  R.  R.  Co., 
93  U.  S.  412.)  Under  section  11  of  the  act  of  June 
1,  1872,  the  supersedeas  bond  may  be  executed  and  a 
supersedeas  obtained  within  sixty  days  after  the  ren- 
dition of  the  judgment,  and  later  with  the  permission 
of  the  designated  judge.  (Western  U.  Telegraph  Co. 
V.  Eyser,  19  Wall.  419;  Boise  County  v.  Gorman,  19 
Wall.  G61;  see  United  States  v.  Addison,  22  How.  174; 
Stoclvton  V.  Bishop,  2  How.  74.) 

Writ  of  error  as  supersedeas.— A  writ  of  error  be- 
comes a  supersedeas  per  se  where  the  party  suing 
it  out  complies  with  the  statute.  (Tiernan  v.  Booth, 
9  Biss.  499;  4  Fed.  Rep.  620.)  It  will  operate  as  a 
supersedeas  if  duly  seawed  within  sixty  days,  Sun- 
day exclusive,  after  motion  for  new  trial  overruled. 
(Rutherford  v.  Penn.  Mut.  L.  Ins.  Co.,  1  Fed.  Rep. 
456;  1  McCrary,  120;  Tiernan  v.  Booth,  9  Biss.  499; 
4  Fed.  Rep.  620;  Arnold  v.  Frost,  9  Ben.  267;  Fed. 
Cas.  No.  558.)  If  the  writ  of  error  is  too  late  to 
operate  as  a  supersedeas  the  supreme  court  will  not 
quash  a  writ  of  possession  issued  to  enforce  the  de- 
cree. (Wallen  v.  Williams,  7  Cranch,  278.)  The  court 
will  not  grant  a  writ  of  possession  where  there  was 
a  mere  technical  defect  in  the  supersedeas.  (Tiernan 
V.  Booth,  9  Biss.  499;  4  Fed.  Rep.  620.)  The  circuit 
court  has  no  power  to  stay  the  execution  on  the 
ground  of  mistalie  (Saltmarsh  v.  Tuthill,  12  How. 
387);  and  there  is  nothing  to  pTevent  the  clerlj  from 
preparing  an  execution  before  the  sixty  days;  but  it 


§  540  PEOCEDURE  ON  ERROR  AND  APPEAL,  1254 

cannot  be  issued  before  the  expiration  of  the  sixty 
days.  (Board  v.  Gorman,  19  Wall.  661;  Ex  parte 
Dunn,  6  S.  C.  307.)  The  prohibition  of  the  issuance  of 
execution  until  after  a  certain  time  refers  only  to 
judgments  and  decrees  of  Federal  courts.  (Doyle 
V.  Wisconsin,  94  U.  S.  50.)  Although  the  bond  is 
filed  within  the  sixty  days,  yet  the  writ  will  not 
operate  as  a  supersedeas  unless  a  copy  thereof  is 
lodged  in  the  clerk's  othce  within  sixty  days  (Rail- 
road Co.  V.  Harris,  7  Wall.  574;  see  Thornhill  v. 
Bank,  4  Am.  L.  T.,  N.  S.,  245;  Fed.  Cas.  No.  13991; 
Thompson  v.  Yoss,  1  Cranch  0.  O.  108;  Fed. 
Cas.  No.  13979;  Adams  v.  Law,  16  How.  144);  but 
if  the  district  court  extends  the  time  for  giving 
the  bond,  when  taken  it  relates  back  to  the  time  of 
taking  the  appeal  (Dutcher  v.  Woodhull,  7  Ben.  313; 
Fed.  Cas.  No.  4204);  and  if  the  writ  of  error  is  sued 
out  and  served  within  the  sixty  days,  the  required 
security  may  be  given  after  the  service.  (Kitchen  v. 
Randolph,  93  U.  S.  86.)  The  service  of  the  writ  of 
error  or  the  perfection  of  the  appeal  within  sixty  days 
is  an  indispensable  prerequisite  to  a  supersedeas,  and 
no  stay  of  process  can  be  granted  on  the  judgment 
if  this  is  not  done.  (Kitchen  v.  Randolph,  93  U.  S. 
86;  Sage  v.  Central  R.  R.  Co.,  93  U.  S.  412.)  A  bond 
filed  on  the  taking  of  an  appeal  in  an  action  at  law 
cannot  operate  as  a  supersedeas  (Sallraarsh  v.  Tut- 
hill,  12  How.  387);  and  if  no  bond  is  tiled  to  stay 
execution  of  the  decree  appellant  cannot  complain  on 
account  of  its  enforcement.  (Soutter  v.  Da  Crosse 
Railroad,  1  Woolw.  80;  Fed.  Cas.  No.  13180.)  Where 
a  petition  is  filed  for  a  rehearing  in  the  State  court, 
the  granting  of  a  writ  of  error  and  the  filing  of  the 
bond  witnin  sixty  days  will  operate  as  a  supersedeaa. 
(Slaughter  House  Cases,  10  Wall.  273.)  Where  the  de- 
cree is  special,  and  its  terms  are  to  be  subsequently 
settled,  the  appellant  may  file  the  bond  within  sixty 
days  after  entry  of  the  decision,  or  within  sixty  days 


J 


1255  PEOCEDUBE  ON  ERKOR  AND  APPEAL.  §  541 

after  the  entry  of  the  decree  (Silsby  v.  Foote,  20 
How.  2yu);  and  if  he  does  not  give  the  bond  within 
sixty  days  he  may  nevertheless  sue  out  his  writ  of 
error  or  talie  his  appeal  at  any  time  within  two  years 
upon  giving  security  to  cover  the  costs.  (Saltmarsh 
V.  Tuthill,  12  How.  387;  Hudgins  v.  Kemp,  18  How. 
•530;  The  Roanolie,  3  Blatchf.  31)0;  Fed.  Oas.  No.  11875.) 
After  acceptance  of  a  bond  in  awarding  a  superse- 
deas the  jurisdiction  of  the  lower  court  ceases  and 
it  attaches  here,  and  the  lower  court  cannot  make 
an  order  requiring  additional  secnrity.  (Keyser  v. 
Farr,  105  U.  S.  265.)  Sundays  are  to  be  excluded  in 
the  computation  of  time  under  the  last  clause  of  the 
above  section.  (Danielson  v.  Northwestern  Fuel  Co., 
55  Fed.  Kep.  49.) 

§  541.  Writs  of  error  and  appeals  to  supreme 
court,  time  for  taking. — No  judgment,  decree,  or 
order  of  a  circuit  or  district  court,  in  any  civil 
action,  at  law  or  in  equity,  shall  be  reviewed  in 
the  supreme  court,  on  writ  of  error  or  appeal,  un- 
less the  writ  of  error  is  brought,  or  the  appeal  is 
taken,  within  two  years  after  the  entry  of  such 
judgment,  decree,  or  order;  provided,  that  where 
a  party  entitled  to  prosecute  a  writ  of  error  or  to 
take  an  appeal  is  an  infant,  insane  person,  or  im- 
prisoned, such  writ  of  error  may  be  prosecuted, 
or  such  appeal  may  be  taken,  within  two  years 
after  the  judgment,  decree,  or  order,  exclusive  of 
the  term  of  such  disability.  [See  sec.  635. J 
(Eev.  Stats,  sec.  1008.) 

Within  what  time.— A  writ  of  error   (Gelston  v. 

vHoyt,  3  Wheat,  246;  Brooks  v.  Norris,  11  How.  204) 

or  an  appeal  (U.   S.  v.  Pacheco,  20  How.  261)  must 

be    allowed    within    two    years,  or    the    court    may 


§  542  PROCEDURE  ON  ERROR  AND  APPEAL.  1250 

disallow  the  appeal;  but  if  the  appeal  was  al- 
lowed within  the  two  years,  the  court  may  accept 
tlie  security  after  that  time  and  allow  the  ap- 
peal nunc  pro  tunc.  (Brandres  v.  Cochrane,  13 
Fed.  Rep.  142,  notes;  The  Dos  Hermauos,  10  Wheat. 
306.)  The  limitation  prescribed  by  this  section  does 
not  apply  to  writs  of  error  coram  nobis.  (Strode  v. 
Stafford  Justices,  1  Brocli.  162;  Fed.  Cas.  1S537.)  If 
an  opinion  is  filed  containing  directions  for  a  decree 
there  is  no  decree  until  it  is  tiled,  and  if  subsequently 
amended  the  last  is  the  final  decree.  (U.  S.  v.  Gomez, 
1  Wall.  G<JO;  McGarrahan  v.  Maxwell,  28  Cal.  75.)  If 
a  motion  for  a  new  trial  is  not  filed  during  the  term 
when  judgment  was  rendered,  the  time  notwithstand- 
ing runs  from  the  entry  of  the  judgment.  (Cambus- 
ton  V.  U.  S.,  95  U.  S.  285.)  The  period  of  the  rebel- 
lion is  not  to  be  included  in  determining  whether 
writ  has  been  sued  out  within  the  proper  time.  (The 
Protector,  9  Wall.  687.)  If  a  writ  of  error  is  barred 
by  the  statute  the  objection  may  be  made  by  mo- 
tion. (Brooks  V.  Norris,  11  liow.  204;  see  Chapman 
V.  Barney,  129  U.  S.  677.) 

§  542.  Appeals  in  prize  causes,  within  what 
time. — Appeals  in  prize  causes  shall  be  made  with- 
in thirty  days  after  the  rendering  of  the  decree  ap- 
pealed from,  unless  the  court  previously  extends 
the  time,  for  cause  shown  in  the  particular  case; 
provided,  that  the  supreme  court  may,  if  in  its 
judgment  the  purposes  of  justice  require  it,  allow 
an  appeal  in  any  prize  cause,  if  it  appears  that  any 
notice  of  appeal,  or  of  intention  to  appeal,  was  filed 
with  the  dork  of  the  district  court  within  thirty 
days  next  after  the  rendition  of  the  final  decree 
therein.  [See  sees.  695,  4G3G.]  (Kev.  Stats,  sec. 
1009.) 


1257  PROCEDURE  ON  ERROR  AND  APPEAL.  §  543 

Note. — Where  notice  of  appeal  or  of  intention  to 
appeal  was  filed  in  the  district  court  within  thirty 
days  next  after  final  decree,  an  appeal  will  be  allowed 
when  justice  requires  it.  (La  Nuestra  Senora  de 
Regla,  17  Wall.  29.) 

§  543.  Damages  and  costs  on  affirmance  in  er- 
ror.— Where,  upon  a  writ  of  error,  judgment  is 
affirmed  in  the  supreme  court  or  a  circuit  court, 
the  court  shall  adjudge  to  the  respondents  in  error 
just  damages  for  his  delay,  and  single  or  double 
costs,  at  its  discretion.     (Eev.  Stats,  sec.  1010.) 

Note.— This  section  applies  to  decrees  in  equity  as 
well  as  to  judgments  at  law.  (Perliins  v.  Fourniquet, 
14  How.  328.) 

Damages  for  delay.— There  can  be  no  allowance 
for  damages  but  for  the  delay.  (Cotton  v.  Wallace, 
3  Dall.  302.)  If  the  principle  involved  in  the  case  was 
controverted  at  the  time  the  writ  of  error  was  sued 
out.  damages  will  not  be  allowed  (McKee  v.  Rains, 
10  Wall.  22);  but  if  every  question  involved  had  been 
settled,  damages  for  delay  will  be  allowed.  (Penny- 
wit  V.  Eaton,  15  Wall.  380.)  When  the  writ  is  sued 
out  merely  for  delay,  damages  at  the  rate  of  ten 
per  cent  on  the  judgment  from  its  date  will  be  al- 
lowed (Barrow  v.  Hill,  13  How.  54;  Kilbourne  v. 
State  Sav.  Inst,  22  How.  503;  Sutton  v.  Bancroft,  23 
How.  320;  Jenkins  v.  Banning.  23  How.  455;  Pren- 
tice V.  Pickersgill,  6  Wall.  511;  Insurance  Co.  v. 
Huchberger,  12  Wall.  164;  Hennessey  v.  Shelden.  12 
Wall.  440;  Hall  v.  Jordan,  19  Wall.  271);  but  not 
more  than  ten  per  cent;  yet  less  may  be  given.  (West 
Wis.  R.  R.  Co.  V.  Foley,  94  U.  S.  100.)  Where  money 
in  hands  of  a  marshal  is  stopped  by  a  third  person, 
no  increase  of  damages  will  be  allowed.  (Jennings 
T.  The  Perseverance,  3  Dall.  336.)     Damages  for  de- 


§  544     PROCEDURE  ON  ERROR  AND  APPEAL.       1258 

lay  are  not  allowed  on  affirmance  of  a  decree  in  ad- 
miralty (The  Douro,  3  Wall.  564),  and  the  allowance 
of  interest  on  the  affirmance  of  a  decree  in  admiralty 
is  not  an  incident,  but  lies  in  the  discretion  of  the 
court.  (Hemmenway  v,  Fisher,  20  How.  255.)  When 
a  judj^ment  is  affirmed,  interest  will  be  allowed  from 
the  date  of  its  rendition  in  the  circuit  court.  (Brown 
V.  Van  Braam,  3.  Dall.  344;  Bank  v.  Wistar,  3  Peters, 
431;  Mitchell  v.  Harmony,  13  How.  116;  Perldns  v. 
Fourniquet,  14  How.  328;  Hemmenway  v.  Fisher,  20 
How.  255.)  The  amount  of  the  bond  on  granting  a 
supersedeas  is  to.be  determined  by  the  circuit  court 
under  the  laws  and  rules  of  the  supreme  court.  (U. 
S.  V.  New  Orleans,  8  Fed.  Kep.  112.) 

§  544.  Reversal  on  error  limited. — There  shall 
be  no  .reversal  in  the  supreme  court  or  in  a  circuit 
court  upon  a  writ  of  error,  for  error  in  ruling  any 
plea  in  abatement,  other  than  a  plea  to  the  juris- 
diction of  the  court,  or  for  any  error  in  fact.  (Rev. 
Stats,  sec.  1011.) 

Keversal— Review  of  facts.— This  section  applies  to 
the  court  of  appeals  (Hall  v.  Houghton  etc.  Mercan- 
tile Co.,  19  U.  S.  App.  644;  60  Fed.  Kep.  350).  If  the 
circuit  court  sustains  a  plea  in  al>atement  the  judg- 
ment cannot  be  reversed  on  error.  (IMquignot  v.  Penn- 
sylvania 11.  R.  Co.,  16  Hovvf.  104;  see  Stafford  v.  Union 
Bank,  16  How.  135.)  The  above  section  does  not 
fori  (id  the  review  of  a  decision  of  a  question  of  juris- 
diction depending  on  the  sufficiency  of  the  service 
of  summons  (Goldey  v.  Morning  News,  156  U.  S.  518). 
Under  the  alxive  section  the  sufficiency  of  the  evi- 
dence to  sustain  the  findings  of  the  court  can  only 
be  presented  for  review  by  a  request  for  a  peremp- 
tory holding  that  on  the  undisputed  facts  the  finding 
must  be  otherwise  (Citizens'  Bank  of  Wichita  v.  Far- 


1259  PROCEDURE   ON   ERROR   AND   APPEAL.  §  544 

well,  27  U.  S.  App.  2G8;  63  Fed.  Eep.  117;  Rhodes  v. 
United  States  Nat.  Bank,  24  U.  S.  App.  607;  66  Fed. 
Rep.  512;  National  Bank  of  Commei-ce  v.  First  Nat. 
Bank,  27  U.  S.  App.  88;  61  Fed.  Rep.  809;  Rodecker 
V.  Littauer,  19  U.  S.  App.  455;  59  Fed.  Rep.  857; 
Board  of  Commissioners  v.  McMaster,  32  U.  S.  App. 
367;  68  Fed.  Rep.  177;  Searcy  County  v.  Thompson, 
27  U.  S.  App.  715;  66  Fed.  Rep.  92;  Distilling  &  Cattle 
Feeding  Co.  v.  Gottschalk  Co.,  24  U.  S.  App.  638;  66 
Fed.  Rep.  609;  Adkins  v.  W.  &  J.  Sloane,  19  U.  S. 
App.  661 ;  61  Fed.  Rep.  791 ;  Burrows  v.  Niblack,  53 
U.  S.  App.  712;  84  Fed.  Rep.  Ill;  Minchen  v.  Hart, 
36  U.  S.  App.  534;  72  J'ed.  Rep.  294;  Woodbury  v. 
City  of  Shawneetown,  34  U.  S.  App.  655;  74  Fed. 
Rep.  205.  On  writ  of  error  the  findings  of  fact  are 
binding  on  the  appellate  court  (Jones  y.  McCoruiick 
Harvesting  Co.,  53  U.  S.  App.  408;  82  Fed.  Rep.  295; 
Smiley  v.  Barker,  55  U.  S.  App.  125;  83  Fed.  Rep. 
684;  Adkins  v.  W.  &  J.  Sloane,  19  U.  S.  App.  661; 
61  Fed.  Rep.  791;  Hardman  v.  Montana  Union  Ry. 
Co.,  83  Fed.  Rep.  88;  Hoge  v.  Magnes,  56  U.  S.  500; 
85  Fed.  Rep.  355;  O'Hara  v.  Mobile  &  O.  Ry.  Co.,  40 
U.  S.  App.  471;  76  Fed.  Rep.  718;  Farwell  v,  Sturges, 
9  U.  S.  App.  405;  56  Fed.  Rep.  782.) 

Verdict — When  conclusive. — The  sufficiency  of  the 
evidence  to  sustain  the  verdict  is  not  reviewable  in 
Federal  appellate  courts,  unless  defendant  asked  a 
peremptory  instruction  for  a  verdict  in  his  favor  at 
the  close  of  the  whole  evidence  (Pac.  Mut.  Life  Ins. 
Co.  V.  Snowden,  12  U.  S.  App.  704;  58  Fed.  Rep.  342; 
German  Ins.  Co.  v.  Frederick,  19  U.  S.  App.  24;  58 
Fed.  Rep.  144;  City  of  Lincoln  v.  Sun  Vapor  St.  Light 
Co.,  19  U.  S.  App.  431;  59  B'ed.  Rep.  756;  Chisholm 
V.  Radford  Brick  Co.,  24  U.  S.  App.  523;  65  Fed.  Rep. 
1;  Terre  Haute  &  I.  R.  Co.  v,  Mansberger,  28  U.  S. 
App.  313;  65  Fed.  Rep.  196;  McCormick  v.  Falls  City 
Bank,   9   U.   S,   App.   203;  57   Fed.    Rep.   107;   Great 


§  544  PROCEDURE  ON  ERROR  AND  APPEAL.  1260 

Northern  Ry.  Co.  v.  McLaughlin,  44  U.  S.  App.  189; 
70  Fed.  Rep.  669).  And  even  though  a  motion  for  a 
verdict  be  made  and  overruled  or  granted,  the  verdict 
of  the  jury  -wall  not  be  disturbed  except  clear  er- 
ror be  shown  (Carter  Crume  Co.  v.  Peurrung,  TJ.  S. 
App.,  86  Fed.  Rep.  439:  Merwin  v.  Magone,  35 
U.  S.  App.  741;  70  Fed.  Rep.  776;  Magone  v.  Origet, 
35  U.  S.  App.  744;  70  Fed.  Rep.  778;  Gulf  etc.  Ry. 
Oo.  V.  Ellis,  10  U.  S.  App.  640;  54  Fed.  Rep.  481), 
When  there  is  evidence  to  sustain  a  verdict  an  appel- 
late court  should  not  reverse  the  judgment  thereon  on 
the  ground  that  the  jury  erred  in  the  amount  of  their 
finding  (Crosby  Lumber  Co.  v.  Smith,  3  U.  S.  App. 
125;  51  Fed.  Rep.  63;  Morning  .Toiu*nal  As«n.  v.  Ruth- 
erford, 1  U.  S.  App.  201} ;  51  Fed.  Rep.  513).  The  rec- 
ord must  disclose  that  the  whole  evidence  is  included 
in  the  bill  of  exceptions  or  the  sufficiency  of  the 
evidence  to  sustain  the  verdict  cannot  be  considered 
(National  Masonic  Assn.  v.  Shryocli,  36  U.  S.  App. 
658;  73  Fed.  Rep.  774). 

Harmless  error.— An  error  committed  by  the  trial 
court  which  is  immaterial  in  view  of  the  whole  case, 
is  not  ground  for  reversal  (McElwee  v.  Bridgeport 
Land  v^-  Imp.  Co.,  13  U.  S.  App.  195;  54  Fed.  Rep.  627; 
Texas  &  Pac.  R.  R.  Co.  v.  Nolan.  23  U.  S.  App.  443; 
62  Fed.  Rep.  552;  Migeon  v.  Montana  Cent.  Ry.  Co., 
44  U.  S.  App.  724;  77  P'ed.  Rep.  249;  Steiuer  v.  Ep- 
pinger,  23  U.  S.  App.  344;  61  Fed.  Rep.  253;  Manufac- 
turers' Accident  etc.  Co.  v.  Dorgan,  16  U.  S.  App.  290; 
58  Fed.  Rep.  945;  Hudmon  v.  Cuyas,  13  U.  S.  App. 
443;  57  Fed.  Rep.  355;  United  States  v.  Patrick,  36 
U.  S.  App.  645;  73  Fed.  Rep.  800;  United  States  v. 
Shapioigli,  12  U.  S.  App.  26;  54  Fed.  Rep.  126).  But 
it  must  clearly  appear  from  the  record  that  the  error 
was  harmless,  or  error  in  giving  instructions  must 
lead  to  reversal  (Atchison  T.  &  S.  Fe  R.  Co.  v.  Mc- 
Clurg,  19  U.  S.  App.  346;  59  Fed.  Rep.  860;  National 


1261  PROCEDURE  ON  ERROR  AND  APPEAL.        §  544a 

Masonic  Ace.  Assn.  v.  Shryock,  36  U.  S.  App.  658;  73 
Fed.  Eep.  774). 

§  544  a.  Cases  tried  by  the  circuit  court  with- 
out the  intervention  of  a  jury. — When  an  issue  of 
fact  in  any  civil  cause  in  a  circuit  court  is  tried 
and  determined  by  the  court  without  the  inter- 
vention of  a  jury,  according  to  section  six  hundred 
and  forty-nine,  the  rulings  of  the  court  in  the 
progress  of  the  trial  of  the  cause,  if  excepted  to 
at  the  time  and  duly  presented  by  a  bill  of  ex- 
ceptions, may  be  reviewed  by  the  supreme  court 
upon  a  writ  of  error  or  upon  appeal;  and  when 
the  finding  is  special  the  review  may  extend  to 
the  determination  of  the  sufficiency  of  the  facts 
found  to  support  the  judgment.  (Eev.  Stats,  sec. 
700.) 

See  ante,  sees.  115,  116. 

Special  findings— Review  of.— When  there  is  a 
special  finding  of  facts  the  appellate  court  will  only 
consider  whether  upon  such  facts  the  judgment  was 
correctly  rendered  (White  v.  Thacker,  41  U.  S.  App. 
745;  78  Fed.  Rep.  8G2;  Randle  v.  Barnard,  53  U.  S. 
App.  377;  81  Fed.  Rep.  682;  Walker  v.  Miller,  19 
U.  S.  App.  403;  59  Fed.  Rep.  869;  Insurance  Co.  v. 
International  Trust  Co.,  36  U.  S.  App.  291;  71  Fed. 
Rep.  88;  Wesson  v.  Saline  County,  34  U.  S.  App.  680; 
73  Fed.  Rep.  917;  Blanchard  v.  Commercial  Bank,  44 
U.  S.  App.  456;  75  Fed.  Rep.  249).  When  a  jury  Is 
waived  in  the  circuit  court,  a  party  wishing  to 
raise  any  question  of  law  upon  the  merits  in 
the  court  above  should  request  special  findings 
of  fact  framed  like  the  verdict  of  a  jury  and 
reserve  his  exceptions  to  those  special  findings 
Fed.  Proc— 106. 


§  544a        PROCEDURE  ON   ERROR  AND  APPEAL.  1*262 

if  he  deem  them  not  sustained  by  the  evidence 
(Humphreys  v.  Third  Nat.  Banli,  43  U.  S.  App. 
698;  75  Fed.  Kep.  852;  Mercantile  Trust  Co.  v.  Wood, 
19  U.  S.  App.  567;  60  Fed.  Rep.  346).  If  finding 
of  the  facts  is  special  it  should  be  set  forth  on  the 
record  in  the  natm-e  of  a  special  Tcrdict.  (Hyde  v. 
Booraem,  16  Fetei-s,  169;  U.  S.  v.  Kins,  7  How.  833; 
Weems  v.  George,  13  Hoav.  190;  see  Parsons  v.  Ar- 
moa%  3  Peters,  413.)  If  there  is  a  special  finding,  the 
evidence  will  not  be  examined  to  see  whether  the 
finding  is  right.  (Saulet  v.  Shepherd,  4  Wall.  502; 
Copelin  v.  Ins.  Cq.,  9  Wall.  461;  Insurance  Ck>.  v. 
Folsom,  18  Wall.  237;  Insurance  Co.  v.  Sea,  21  Wall. 
158;  U.  S.  V.  Dawson,  101  U.  S.  569;  l^ng  v.  Grin- 
nell,  92  U.  S.  467.)  The  review  extends  to  the  suffi- 
ciency of  the  facts  found  to  support  the  judgment. 
(Tyng  V.  Grinnell,  92  U.  S.  467.)  If  not  sufficient  to 
support  the  judgment,  the  case  may  be  remanded  for 
trial  on  other  issues  involved  therein.  (Ex  parte 
French,  91  U.  S.  423.)  If  there  Is  no  special  finding 
of  facts,  the  supreme  court  cannot  examine  the  evi- 
dence to  determine  whether  it  is  sulficient  to  support 
the  judgment.  (Norris  v.  Jaclvson,  9  Wall.  125;  Gen- 
eres  v.  Campbell,  11  Wall.  193;  Miller  v.  Life  Ins. 
Co.,  12  AVall.  285;  Richmond  v.  Smith,  15  Wall.  429; 
Dickinson  v.  Planters'  Bank,  16  Wall.  250;  Ohio  v. 
Marcy.  18  Wall.  552;  Fan-ell  v.  U.  S.,  99  U.  S.  221; 
Miller  v.  Houston  City  St.  Ry.  Co.,  13  U.  S.  App.  57; 
55  Fed.  Rep.  366.)  If  there  is  no  error  in  making  up 
the  findings  of  fact,  the  judgment  may  be  reversed 
and  a  new  trial  awai-ded.  (Flanders  v.  Tweed,  9 
Wall.  425.) 

Trial  by  the  court.— Where  a  party  is  present  and 
goes  to  trial  Ix'tore  the  court  without  objection,  he 
will  be  deemed  to  have  waived  a  jury  trial  (Phil- 
lips V.  Preston,  5  How.  278;  Gilman  v.  Illinois  &  M. 
Tel.  Co.,  91  U.  S.  603);  but  if  there  is  nothing  to  show 


1263  PROCEDUKE  ON  ERROR  AND  APPEAL.        §  544a 

that  he  or  his  counsel  were  present,  it  is  error  for 
the  court  to  try  the  issues  without  a  jury-  (Kearney 
V.  Case,  12  Wall.  275.)  If  the  record  shows  a  waiver 
of  a  jury  trial,  but  not  that  such  waiver  was  in. 
writing,  it  is  sufficient  to  support  the  judgment  but 
not  to  authorize  a  review  of  the  rulings.  (Kearney 
V.  Case,  12  Wall.  275.)  A  recital  in  the  record  that 
a  jury  is  waived  is  conclusive  of  an  agreement  to 
waive  it.  (Fleitas  v.  Coclirau,  101  U.  S.  301.)  A 
statement  of  facts  filed  after  judgment  is  no  evidence 
of  a  waiver.  (Flanders  v.  Tweed,  y  Wall.  425.)  If 
the  record  does  not  show  a  waiver,  judgment  may  be 
reversed  and  the  case  remanded.  (Flanders  v.  Tweed, 
9  Wall.  425.)  Rulings  at  the  trial  of  an  action  at  law, 
without  a  jury,  when  there  had  been  no  waiver  of  a 
jury  by  stipulation  in  writing  signed  by  the  parties 
or  their  attorneys,  and  filed  with  the  clerk,  are  not 
reviewable  under  this  section.  (Bond  v.  Dustin,  112 
U.  S.  604;  Paine  v.  Cent.  Vt.  Railroad,  118  U.  S.  152; 
Dundee  Mortgage  Co.  v.  Hughes,  124  U.  S.  157;  Rob- 
erts V.  Benjamin,  124  U.  S.  64.) 

Eulings. — If  the  case  was  tried  by  the  court,  the 
improper  rejection  of  evidence  is  a  proper  subject 
for  a  bill  of  exceptions  (Arthurs  v.  Hart,  17  How. 
6);  but  if  the  testimony  is  cumulative,  judgment  will 
not  be  reversed  if  it  could  not  have  influenced  the 
result.  (Arthurs  v.  Hart,  17  How.  6.)  So  the  ad- 
mission of  immaterial  evidence  is  no  sufficient  rea- 
son for  reversing  a  judgment  when  it  would  not  have 
injuriously  affected  the  party  objecting.  (Mining  Co. 
V.  Taylor,  100  U.  S.  37.)  The  ruling  on  admission  of 
evidence  must  be  properly  excepted  to.  (Tyng  \. 
Grinnell,  92  U.  S.  467;  Weems  v.  George,  13  How. 
190;  Campbell  v.  Boyreau,  21  How.  223;  see  Field  v. 
U.  S.,  9  Peters,  182.)  If  the  judge  refuses  an  instruc- 
tion at  the  close  of  plaintiff's  case  that  the  evidence 
is  not  sufficient  to  entitle  plaintiff  to  recover,   the 


§  544a        PROCEDURE  ON  ERROR  AND  APPEAL.  1264 

ruling  is  subject  to  review  (Insurance  Co.  v.  Folsom, 
18  Wall.  237;  Folsom  v.  Mercantile  Ins.  Co.,  9  Blatchf. 
201;  Fed.  Cas.  No.  4903);^  but  the  rulings  of  the  judge 
on  prayers  for  instructions  to  submit  to  the  jury  can- 
not be  reviewed.  (Dirst  v.  Morris,  14  Wall.  484;  Crews 
V.  Brewer,  19  Wall.  70;  Cooper  v.  Omohundro,  19 
Wall.  65;  see  Miller  v.  Life  Ins.  Co.,  12  Wall.  285.) 
A  refusal  to  grant  a  new  trial  is  not  subject  to  re- 
view, as  the  granting  or  refusing  is  in  the  discretion 
of  the  court  (Cooper  v.  Omohundro,  19  Wall.  65);  so 
of  the  allowance  of  time  for  the  production  of  further 
evidence  (Gilman  v.  Illinois  &  M.  Tel.  Co..  91  U.  S. 
603);  or  a  ruling  on  motion  to  strilie  out  a  judgment 
entered  on  the  pleadings.  (Cheang  Kee  v.  U.  S.,  3 
Wall.  320.) 

Findings.— The  court  under  this  section  may  deter- 
mine, as  in  case  of  a  special  verdict,  whether  the 
facts  in  the  agreed  statement  are  sufficient  to  sustain 
the  judgment,  although  the  finding  of  the  circuit  court 
was  in  form  general.  (Supervisors  v.  Kennicott,  103 
U.  S.  554.)  The  findings  of  the  court  are  conclusive. 
(Davis  V.  FredericlvS,  104  U.  S.  018.)  In  cases  of  trials 
not  by  jury,  a  statement  of  facts  is  necessary  to 
enable  this  court  to  review  the  decision  of  the  court 
below.  (Bonnifield  v.  Price,  4  Morr.  Trans.  357.) 
Where  the  finding  is  general,  no  question  of  law  is 
subject  to  review  except  those  growing  out  of  the 
rulings.  (Dirst  v.  Morris,  14  Wall.  484;  Insurance  Co. 
V.  Folsom,  18  Wall.  237;  Cooper  v.  Omohundix),  19 
Wall.  Go;  Crews  v.  Brewer,  19  Wall.  70.)  If  the  judge 
finds  the  facts,  and  then  proceeds  to  deduce  there- 
from another  fact,  the  conclusion  may  be  revised. 
(French  v.  Edwards.  21  Wall.  147.)  A  statement  of 
facts  signed  by  counsel  cannot  be  deemed  a  finding  of 
facts.  (Bethel  v.  Matthews,  13  Wall.  1;  Kearney  v. 
Case,  12  Wall.  275.)  An  opinion  reciting  some  evi- 
dence, and  stating  evidence  instead  of  facts  found, 


1265  PROCEDURE  OX  ERROR  AND  APPEAL.        g  544a 

is  not  a  statement  of  facts  (Insurance  Co.  v.  Tweed, 
7  Wall.  44);  and  a  statement  or  opinion  tiled  after 
entry  of  judgment  cannot  be  regarded  (Flanders  v. 
Tweed,  9  Wall.  425;  United  States  v.  King,  7  How. 
833;  see  McGavock  v.  Woodlief,  20  How.  221);  so,  a 
mere  report  of  the  evidence  is  not  a  sufficient  state- 
ment of  facts  (Crews  v.  Brewer,  19  Wall.  70);  and  a 
statement  filed  without  consent  of  the  parties  after 
issue  and  service  of  the  writ  of  error  cannot  be  re- 
garded. (Generes  v.  Bonnemer,  7  Wall.  564;  Aven- 
dano  V.  Gay,  8  Wall.  376.)  When  the  cause  is  tried 
by  the  court  without  a  jury,  judgment  will  be  af- 
firmed if  there  is  neither  a  special  verdict  nor  an 
agreed  statement  of  facts,  nor  a  bill  of  exceptions  to 
rulings.  (Minor  v.  Tillotson,  2  How.  392;  Prentice 
V.  Zane,  8  How.  470;  Guild  v.  Frontin,  18  How.  135; 
Kelsey  v.  Forsyth,  21  How.  85;  Lawler  v.  Claflin,  22 
How.  23;  New  Orleans  v.  Gaines.  22  How.  141;  Gil- 
man  V.  Illinois  &  M.  Tel.  Co.,  91  U.  S.  603.)  The  de- 
cision of  the  circuit  court  on  the  weight  of  evidence  is 
conclusive.     (Bond  v.  Brown,  12  How.  254.) 

Exceptions  to  be  taken. — An  objection  to  the  ad- 
mission or  exclusion  of  evidence  or  to  the  ruling  on 
propositions  of  law  must  appear  by  bill  of  excep- 
tions (Norris  v.  Jackson,  9  Wall.  125);  so  where  the 
objection  is  that  the  evidence  was  not  suflicient  to 
justify  the  finding.  (Cucullu  v.  Emmerling,  22  How. 
83.)  If  the  verdict  is  general,  only  such  rulings  can 
be  reviewed  as  are  presented  by  bill  (NoiTis  v.  Jack- 
son, 9  Wall.  125;  Miller  v.  Life  Ins.  Co.,  12  Wall. 
285);  and  the  bill  of  exceptions  cannot  be  used  to 
bring  up  the  whole  testimony  for  review  (Dirst  v. 
Morris,  14  Wall.  484;  see  Coddington  v.  Richardson, 
10  Wall.  510);  but  whether  the  finding  is  general  or 
special,  the  rulings,  if  excepted  to,  may  be  reviewed 
(Miller  v.  Life  Ins.  Co.,  12  Wall.  285);  and  no  bill  of 
exceptions  is  necessary  to  bring  up  on  the  record  the 


§  544a   PROCEDUKE  ON  ERROR  AND  APPEAI,.      1266 

findings,  whether  general  or  sjiecial  (Insurance  Co.  v. 
Boon,  95  U.  S.  117.)  The  mere  fact  that  other  evi- 
dence was  given  besides  what  is  found  in  the  bill 
of  exceptions  is  no  objection  to  the  examination  of 
the  question  of  law  presented  by  it.  (Arthurs  v. 
Hart,  IT  How.  G.)  A  general  exception  to  a  special 
finding  is  not  sufficient  (Insurance  Co.  v.  Sea,  21  Wall. 
158);  and  no  exception  can  be  talvcn  to  a  refusal  to 
malie  a  special  finding.  (Insurance  Co.  v.  Folsom, 
18  Wall.  237.)  Exceptions  to  rulings  of  the  court 
must  be  taken  at  the  time.  (Nickerson  v.  Steamship 
Co.,  4  Morr.  Trans'.  360.)  The  court  refuses  to  con- 
sider errors  assigned  on  a  mere  motion  for  a  new 
trial,  and  not  made  part  of  the  record  by  bill  of  ex- 
ceptions. (Levy  V.  Danzcl,  3  Morr.  Trans.  115.)  Al- 
leged errors  not  brought  to  the  attention  of  the  in- 
ferior court  cannot  be  considered.  (Davis  y.  Fred- 
ericks, 104  U.  S.  618.)  Where  no  bill  of  exceptions 
is  taken,  this  court  cannot  consider  the  validity  of  an 
order  setting  aside  a  nonsuit.  (Loring  v.  Frue,  3 
Morr.  Trans.  174.)  Bills  of  exceptions  must  embody 
the  evidence,  or  refer  to  the  evidence  contained  in 
other  parts  of  the  record.  (Jones  v.  Buckell,  3  Morr, 
Trans.  555.^  A  prayer  for  instructions  presented  as  a 
whole  is  properly  refused  if  any  of  them  is  erroneous. 
(U.  S.  V.  Hough.  103  U.  S.  71.)  It  is  error  to  in- 
struct toucliing  the  law  applicable  to  facts  not  sup- 
ported by  evidence.  (Jones  v.  Van  Beuthuysen.  103 
U.  S.  87.)  Where  the  bill  of  exceptions  sets  forth 
all  the  facts,  the  judgment  will  not  be  reversed,  be- 
cause a  peremptory  instruction  was  given  to  return  a 
verdict  in  favor  of  the  plaintiff.  (Arthur  v.  Jacoby, 
103  U.  S.  077.)  A  verdict  in  assumpsit  is  amendable, 
HJid  judgment  may  be  rendered  therein  for  the  dam- 
ages thereby  caused.  (Miles  v.  U.  S.,  103  U.  S.  304.) 
An  amended  bill  tiled  witliout  leave  eight  years  after 
a  bill  in  equity  had  l^een  filed  will  be  disregarded  on 


i 


1267      PROCEDURE  ON  ERROR  AND  APPEAL.     §  545 

appeal.  (Terry  v.  McClure,  103  U.  S.  442.)  An  order 
made  by  the  court  below  by  consent  of  parties  la 
binding  on  them  on  appeal.  (Water  Works  Co.  v. 
Barrett,  103  U.  S.  516.)  A  cause  not  entitled  to  prece- 
dence will  not,  over  objections,  be  advanced  in  order 
to  be  heard  before  another  case  on  the  docliet.  (Louis- 
iana V.  New  Orleans,  103  U.  S.  521.)  Where  the  only 
question  presented  arises  on  the  finding  of  facts,  the 
appeal  will  be  dismissed.  (Niclcerson  v.  Merchants' 
S.  Co.,  12  Fed.  Kep.  352,  note.) 

§  545.  Appeals  from  circuit  courts  to  supreme 
court. — Appeals  from  the  circuit  courts  and  dis- 
trict courts  acting  as  circuit  courts,  and  from  dis- 
trict courts  in  prize  causes,  shall  be  subject  to  the 
same  rules,  regulations,  and  restrictions  as  are  or 
may  be  prescribed  in  law  in  cases  of  writs  of  error. 
(Rev.  Stats,  sec.  1012.) 

Appsal,  rules,  and  regulations.— The  supreme  court 
lias  no  power  to  receive  an  appeal  in  any  other  mode 
than  that  provided  by  law  (Villabolos  v.  United 
States,  6  How.  81;  United  States  v.  Moore,  11  Fed. 
Rep.  248),  nor  to  dispense  with  or  change  the  law. 
(United  States  v.  Curry,  6  How.  106.)  The  rules, 
regulations  and  restrictions  as  to  time  within  which 
the  writ  of  error  may  be  brought,  and  when  it  shall 
operate  as  a  supersedeas,  the  citation,  the  security  to 
be  given,  and  the  restrictions  upon  the  appellate  court 
as  to  reversal  are  all  applicable.  (The  San  Pedro,  2 
Wheat.  132.)  The  law  does  not  require  an  appeal  to 
be  made  in  open  court;  it  may  be  made  in  vacation, 
and  the  form  in  which  it  is  taken  is  immaterial. 
(Hudgins  v.  Kemp,  18  How.  530.)  An  entry  on  the 
minutes  is  not  necessary;  the  certificate  of  the  clerk 
to  the  facts  is  all  that  is  required.  (Hudgins  t. 
Kemp,  18  How.  530.)  And  where  an  appeal  bond  is 
filed,  the  record  may  be  amended  nunc  pa-o  time  to 


§  545  PROCEDURE  ON   ERROR  AND  APPEAL.  1268 

show  an  appeal  taken.  (Nicholson  v.  Chicago,  5  Biss. 
89;  Fed.  Cas.  No.  10248.)  Appeals  entered  at  the 
succeeding-  term  will  be  dismissed.  (In  re  McEwen, 
9  Biss.  3G8.)  A  cross-appeal  must  be  prosecuted  like 
any  other  appeal.  (Weuslow  v.  Wilcox,  4  Morr. 
Trans.  394.)  If  the  decree  is  joint  all  the  defendants 
must  join,  unless  there  is  a  severance  (Owings  v.  Kin- 
cannon,  7  Peters,  399;  Mussina  t.  Cavazos,  20  How. 
280;  Masterson  v.  Herndon,  10  Wall.  416);  but  one  of 
them  may  prosecute,  although  the  others  abandon  it 
(Todd  V.  Daniel,  16  Peters,  521);  and  any  one  hold- 
ing a  distinct  interest  may  appeal.  (Forgay  v.  Con- 
rad, 6  How.  201.)  An  appeal  or  supereedeas  does  not 
oust  the  jurisdiction  of  the  lower  court  or  preclude 
collateral  or  independent  proceedings.  (Fidelity 
Trust  &  S.  D.  Co.  V.  Mobile  St.  Ry.  Co.,  54  Fed.  Rep. 
26.) 

Application  and  allowance.— An  appeal  is  a  matter 
of  right,  and  no  petition  is  necessary.  (United  States 
V.  Curry,  6  How.  106.)  A  petition  praying  for  an  ap- 
peal does  not  operate  to  remove  the  cause,  unless  ac- 
companied by  an  allowance  of  the  appeal  by  the  court 
(Yeaton  v.  Lenox,  7  Pet.  220;  Barrell  v.  Transporta- 
tion Co:,  3  Wall.  424;  Pierce  v.  Cox,  9  Wall.  786);  and 
if  no  appeal  lies  the  court  may  refuse  to  allow  it  (San 
Francisco  v.  United  States,  4  Saw.  553;  Fed.  Cas.  No. 
12316);  but  whfn  allowed  the  circuit  court  cannot  af- 
terward set  aside  the  order  allowing  it.  (McGarra- 
han  V.  The  New  Idria  Min.  Co.,  49  Cal.  331.)  Who- 
ever can  sign  a  citation  may  allow  the  appeal.  (Sage 
V.  Railroad  Co.,  96  U.  S.  712.)  The  order  allowing 
an  appeal  may  at  the  request  of  appellant  be  set  aside 
at  any  time  during  the  term.  (Goddard  v.  Ord- 
way,  101  U.  S.  745.)  There  is  no  provision  in  the  stat- 
ute for  the  form  of  allowance;  the  acceptance  of  se- 
curity followed,  when  necessai-y,  by  the  signing  of  a 
cit/ition  is  in  legal  effect  an  allowance  of  the  appeal. 


1269      PKOCEDUKE  ON  EKROR  AND  APPEAL.     §  545 

(Sage  V.  Railroad  Oo.,  96  U.  S.  712;  Brandies  v.  Coch- 
rane, 105  U.  S.  202;  S.  C.  13  Fed.  Eep.  142.)  Where  the 
claim  and  bond  were  sufficient  a  motion  to  dismiss 
will  be  denied  (Scruggs  v.  Viser,  13  Fed.  Rep.  304, 
note);  and  it  may  be  inferred  that  the  appeal  was  al- 
lowed, although  the  allowance  does  not  appear  on  the 
record  (Railroad  Co.  v.  Bradleys,  7  Wall.  575) ;  but  the 
mere  approval  of  the  bond  during  the  term  is  not  suf- 
ficient. (Vansant  v.  Gaslight  Co.,  99  U.  S.  213.)  If 
allowed  in  open  court  during  the  term  the  allowance 
should  be  entered  on  the  minutes.  (Vansant  v.  Gas- 
light Co.,  99  U.  S.  213.) 

The  citation. — A  citation  to  the  opposite  party  to 
appear  is  necessary  (Villabolos  v.  United  States,  6 
How.  81;  United  States  v.  Curry,  6  How.  106;  Garri- 
son V.  Cass  Co.,  5  W^all.  823;  Alviso  v.  United  States, 
5  Wall.  824;  Railroad  Co.  v.  Blair,  100  U.  S.  661;  Ja-- 
cobs  V.  George,  150  U.  S.  415;  Peace  River  Phosphate 
Co.  V.  Edwards,  30  U.  S.  App.  513;  70  Fed.  Rep.  728; 
West  V.  Irwin,  9  U.  S.  App.  547;  54  Fed.  Rep.  419); 
but  if  an  appeal  is  taken  in  open  court  at  the  same 
term  at  which  the  decree  is  entered,  no  citation  is 
necessary  (Reily  v.  Lamar,  2  Cranch,  344;  The  San 
Pedro,  2  Wheat.  132;  Yeaton  v.  Lenox,  7  Pet.  220; 
Brockett  v.  Brockett,  2  How.  238;  Villabolos  v.  United 
States,  6  How.  81;  United  States  v.  Vigil,  10  Wall. 
423;  Milner  v.  Meek,  95  U.  S.  252;  Jacobs  v.  George, 
150  U.  S.  415;  Central  Trust  Co.  v.  Continental  T. 
Co.,  U.  S.  App.,  86  Fed.  Rep.  517);  but  the  record 
must  show  the  appeal  was  allowed  in  open  court 
(Vansant  v.  Gaslight  Co.,  99  U.  S.  213);  a  citation 
should  issue  though  the  security  is  not  taken  till  after 
the  term  (National  Bank  v.  Omaha,  96  U.  S.  737) ;  and 
if  the  record  shows  that  appellee  had  notice,  the  cita- 
tion is  not  indispensable,  although  the  appeal  is  taken 
at  a  subsequent  term.  (United  States  v.  Gomez,  1 
Wall.  690.)    A  defect  in  the  return  day  of  a  citation 


§  545  PROCEDURE  ON   ERROR  AND  APPEAL.  1270 

on  appeal  is  not  jurisdictional,  and  a  new  citation 
may  be  talven  out  if  necessary.  (Sliute  v.  Keyser, 
149  U.  S.  649.)  A  citation  sliould  issue  where  the  ap- 
peal is  allowed  at  the  term,  but  not  perfected  until 
after  the  term.  (Jacobs  v.  Geoi'ge,  150  U.  S.  415.)  A 
general  acceptance  of  service  of  citation  by  an  attor- 
ney is  good  for  all  the  parties  whom  he  represents 
of  record.  (Andrews  v.  National  Foundry  &  P. 
Worlis,  46  U.  S.  App.  619;  77  Fed.  Rep.  774.)  The 
citation  may  issue,  properly  returnable  even  after  the 
expiration  of  the  time  for  talking  the  appeal  has 
elapsed.     (Jacobs  vi  George,  150  U.  S.  415.) 

Facts  reviewable  in  appealed  cases.— In  appeals  in 
equity  cases  findings  of  fact  made  by  the  court  be- 
low are  not  binding  on  the  appellate  court.  The 
whole  case  is  before  the  latter  court.  (Waterloo  Min. 
'Co.  V.  Doe,  48  U,  S.  App.  411;  82  Fed.  Rep.  45.)  But 
the  findings  are  of  weight.  (Latta  v.  Granger,  32  U. 
S.  App.  342;  68  Fed.  Rep.  69;  Maun  v.  Keene  G.  Sav. 
Banli,  U.  S.  App.,  86  Fed.  Rep.  51;  Metropoli- 
tan Banlj  V.  Rogers,  3  U.  S.  App.  406;  53  Fed.  Rep. 
776.)  When  a  circuit  court  has  sustained  the  finding 
of  a  district  court  on  conflicting  evidence  in  an  ad- 
miralty case,  the  circuit  court  of  appeals  will  not  re- 
verse the  findings  below.  (The  S.  S.  Wilhelm,  16  U. 
S.  App.  356;  59  Fed.  Rep.  169;  The  Rabboni,  53  Fed. 
Rep.  952;  The  Royal,  14  U.  S.  App.  30;  54  Fed.  Rep. 
204.) 

Second  appeal.— If  an  appeal  is  dismissed  for  some 
informality  the  party  may  talie  a  second  appeal  with- 
in the  period  allowed  for  an  appeal  (Yeaton  v.  Lenox, 
8  Pet.  123;  The  Virginia  v.  West,  19  How.  182;  United 
States  V.  Patheco,  20  How.  261;  Edmondson  v.  Bloom- 
shire,  7  Wall.  306);  but  an  order  allowing  a  party  to 
perfect  an  ai)peal  is  not  the  allowance  of  a  second 
appeal      (United  States  v.  Curry,  6  How.  106;  Ed- 


1271  PEOCEDURE  ON  ERROR  AND  APPEAL.  §  546 

mondson  v.  Bloomshire,  7  Wall.  306.)  Second  ap- 
peals are  allowed  to  bring  up  proceedings  subsequent 
to  the  mandate  issued  on  a  former  appeal  and  not  set- 
tled by  the  terms  of  the  mandate  (Hinckley  v.  Mor- 
ton, 103  U.  S.  7G4);  but  where  the  decree  was  entered 
in  exact  accordance  with  the  mandate,  an  appeal 
from  the  decree  will  be  dismissed.  (Humphrey  v. 
Baker,  liTS  U.  S.  736.)  A  party  who  has  appealed,  but 
whose  appeal  has  been  dismissed,  can  only  be  heard 
in  support  of  the  decree.  (Loudon  v.  Taxing  Dis- 
trict, 104  U.  S.  771.)  If  a  copy  of  the  transcript  is  not 
filed  at  the  term  next  succeeding  the  appeal,  a  cita- 
tion issued  after  that  time  without  a  secouid  appeal 
is  null.     (Castro  v.  United  States,  3  Wall.  46.) 

§  546.  Where  both  parties  appeal  to  the  su- 
preme court,  one  record  sufficient. — Where  appeal 
is  duly  taken  by  botli  parties  from  the  judgment 
or  decree  of  a  circuit  or  district  court  to  the  su- 
preme court,  a  transcript  of  the  record  filed  in  the 
supreme  court  by  either  appellant  may  be  used  on 
both  appeals,  and  both  shall  be  heard  thereon  in 
the  same  manner  as  if  records  had  been  filed  by 
the  appellants  in  both  cases.  (Eev.  Stats,  sec. 
1013.) 


CKIMINAI.  FBOCEDU&B.  1272 


CHAPTER  XXII. 

CRIMINAL   PKOCEDURE. 

S  547.  Offenders  against  the  United  States,  how  ar- 
rested, and  how  removed  for  trial. 

§  548.  Bail  shall  be  admitted  in  cases  not  capital — 
By  whom. 

§  549.  Bail  may  be  admitted  in  capital  cases— By 
whom. 

§  550.  Bail  in  criminal  cases  removed  by  writ  of  er- 
ror from  State  courts. 

§  551.     Surrender  of  criminals  by  their  baJl. 

§  552.     New  bail  to  be  given  in  certain  cases. 

§  553.  When  penalty  of  recognizances  may  be  re- 
mitted. 

§  554.  Indictments  and  presentments  to  be  by  at 
least  twelve  grand  jurors. 

§  555.  Offenses  against  the  elective  fi'anchise,  how 
prosecuted. 

§  556.     Form  of  indictment  for  perjury. 

§  557.  Persons  convicted  of  perjury  incompetent 
witnesses. 

§  558.     Indictment  for  subornation  of  perjury. 

§  559.  Matters  set  forth  in  prosecution  for  perjury 
before  a  naval  court-martial. 

§  5G0.  Cliarges  which  may  be  joined  in  one  indict- 
dictment  shall  be  so  joined. 

§  561.    Indictments,  defects  of  form. 

§  562.    Judgment  on  demurrer  to  an  indictment. 

§  568.  When  several  indictments  against  the  same 
persons,  one  writ  sufficient. 

§  564.  Copy  of  writ  to  be  jailer's  authority,  original 
retunied. 


1273  CKIMINAL  PROCEDURE. 

§  565.  Writ  for  removal  of  a  prisoner  from  one  dis- 
trict to  another. 

§  566.  No  writ  necessary  to  bring  into  court  a  per- 
son in  custody. 

§  567.  Wlien  peremptory  challenges  exceed  the  num- 
ber allowed  by  law. 

§  568.     Prisoner  standing  mute,  etc. 

§  569.  Copy  of  indictment  and  list  of  jurors  and  wit- 
nesses to  be  delivered  to  prisoner  in  capital 
cases. 

§  570.  Persons  indicted  for  capital  crimes  entitled  to 
counsel  and  to  compel  attendance  of  wit- 
nesses. 

§  571.     Verdict  of  less  offense  than  charged. 

§  572.  Verdict  against  part  of  several  joint  defend- 
ants. 

§  573.  Indictments  remitted  by  circuit  and  district 
courts  to  each  other. 

§  574.  Remission  from  disti-ict  to  cirvmit  court  of 
difficult  cases. 

§  575.  All  capital  cases  remitted  from  district  to 
circuit  courts. 

§  576.  When  a  capital  case  is  carried  to  the  supreme 
court,  execution  postponed. 

§  577.    Judgments  for  fines,  how  collected. 

§  578.  Poor  convicts  sentenced  and  imprisoned  for 
fines. 

§  579.     For  offenses  against  navigation  laws. 

§  580.     Complaint  and  answer. 

§  581.     Amendments  and  adjournments. 

§  582.     Challenges  to  jurors. 

§  .583.     Limit  of  sentences. 

§  584.  Penalties,  etc.,  under  navigation  laws,  how 
prosecuted,  etc. 

§  585.     Fugitives  from  the  justice  of  a  foreign  coun- 
try. 
Fed.  Peoc— 107. 


CRIMINAL  PROCEDURE.  1274 

§  586.     Subpoena  of  witnesses— Costs  of  process  and 

fees  of  witnesses,  how  paid. 
§  587.    Witness  fees,  costs,  etc.,  to  be  certified  to  sec- 
retary of  State. 

§  588.     Surrender  of  tlie  fugitive. 

§  589.     Time  allowed  for  extradition. 

§  590.     Continuance  of  provisions  limited. 

§  591,     Protection  of  the  accused. 

§  592.  Powers  of  agent  receiving  offenders  delivered 
by  a  foreign  government. 

§  593.     Penalty  for  opposing  agents,  etc. 

§  594.  Evidence  on  the  hearing— Proof  of  proper  au- 
thenticity. 

§  595.     Fugitives  from  justice  of  a  State  or  TeiTitory. 

§  596.     Penalty  for  resisting  agent,  etc. 

§  597.  Arrest  of  deserting  seamen  from  foreign 
vessels— Authority  of  foreign  consul  or  vice- 
consul. 

§  598.  Power  of  foreign  consuls  over  disputes  be- 
tween seamen. 

§  599.     Arrest  of  seamen  on  application  of  consul 

§  600.     Commitment  and  discharge. 

§  601.  Custody  of  United  States  prLsoners,  expenses 
to  be  paid  by  United  States. 

§  602.     Places  of  confinement. 

§  603.  Marshals  to  make  provisions  for  their  safe- 
keeping. 

§  604.    United  States  prisoners  in  state  penitentiaries. 

§  605.     Selection  of  penitentiary  in  a  divided  district. 

§  606.  Sentences  for  longer  term  than  a  year,  where 
to  be  executed. 

§  607.     Penitentiary  sentences,  where  to  be  exeuted. 

§  608.  Deduction  from  term  of  imprisonment  for 
good  conduct. 

§  609.     To  what  prisoners  to  apply. 

§  610.  Convicts  to  have  five  days  per  month  deduct- 
ed for  good  conduct. 


1275  CKIMINAL  PROCEDURE.  §  547 

§  611.  To  be  prorided  with  clothes  and  money  on 
their  discharge. 

§  612.  Actual  reasonable  cost  of  subsisting  prisonei-s 
to  be  paid. 

§  613.  Designation  of  penitentiary  by  attorney-gen- 
eral. 

§  614.  Attorney-general  to  contract  for  subsistence, 
etc. 

§  615.  Court  may  order  sentence  executed  in  house 
of  correction. 

§  616.     Confinement  of  juvenile  offenders. 

§  617.  Attorney-general  to  contract  for  their  sub- 
sistence. 

§  618.  Removal  of  prisoners  in  case  of  contagion  or 
epidemic. 

§  620.    Indictment— Capital  offenses. 

§  621.    Indictment— OfEenses  not  capital 

§  622.     Fleeing  from  justice. 

§  623.    Crimes  under  the  revenue  laws. 

§  624.  Penalties  and  forfeitures  under  laws  of  the 
United  States. 

§  625.    Under  customs  revenue  law. 

§  626.  Parties  beyond  reach  of  process  during  the 
rebellion. 

§  547.     Offenders   against   the   United   States, 
how  arrested   and   removed   for  trial. — For  any 

crime  or  offense  against  the  United  States  the  of- 
fender may,  by  any  justice  or  judge  of  the  United 
States,  or  by  any  commissioner  of  'a  circuit  court 
to  take  bail,  or  by  any  chancellor,  judge  of  a  su- 
preme or  superior  court,  chief  or  first  judge  of 
common  pleas,  mayor  of  a  city,  justice  of  the  peace, 
or  other  magistrate,  of  any  State  where  he  may  be 
found,  and  agreeably  to  the  nsual  mode  of  process 
against  offenders  in  such  State,  and  at  the  expense 


§  547  CRIMINAL  PROCEDURE.  1276 

of  the  United  States,  be  arrested  and  imprisoned, 
or  bailed,  as  the  case  may  be,  for  trial  before  such 
court  of  the  United  States  as  by  law  has  cognizance 
of  the  offense.  Copies  of  the  process  shall  be  re- 
turned as  speedily  as  may  be  into  the  clerk's  office 
of  such  court,  together  with  the  recognizances  of 
the  witnesses  for  their  appearance  to  testify  in  the 
case.  And  where  any  offender  or  witness  is  com- 
mitted in  any  district  other  than  that  where  the 
offense  is  to  be  tried,  it  shall  be  the  duty  of  the 
judge  of  the  district  where  such  offender  or  witness 
is  imprisoned,  seasonably  to  issue,  and  of  the  mar- 
shal to  execute,  a  warrant  for  his  removal  to  the 
district  where  the  trial  is  to  be  had.  [See  sec. 
879.]     (Eev.  Stats,  sec.  1014.) 

Note. — Section  recited  and  referred  to  in  TTnited 
States  V.  .Tones.  134  U.  S.  4S3.  All  the  regulations 
and  steps  incident  to  a  proceedins:  before  tlie  United 
States  commissioner  from  its  commencement  to  its 
close  are  guided  by  the  State  laws  so  far  as  they 
may  be  applicable  to  the  Federal  courts,  if  no  rule 
upon  the  same  subject  has  been  prescribed  by  the 
Federal  statutes  (U.  S.  v.  Sauer,  73  Fed.  Rep.  671). 
The  purposp  of  the  words  "agi-eeably  to  the  usual 
mode  of  process  ;i gainst  offenders  in  such  State"  was 
to  assimilate  all  tlie  proceedings  for  holding  accused 
persons  to  answer  before  a  court  of  the  United  States 
to  those  for  similar  piu-poses  under  the  laws  of  the 
State  where  tho  proceeding  should  talce  place  (Uni- 
ted States  V.  Dunbar,  83  Fed.  Rep.  151).  Tlie  Uni- 
ted States  courts  are  governed  in  the  administration 
of  the  criminal  law  by  the  rules  of  the  common  law 
(Howard  v.  United  States,  43  U.  S.  Api).  678;  75  Fed. 
Rep.  086);  but  there  are  no  common  law  offenses 
against  the  United  States  (In  re  Greene,  52  I'"'ed.  Rep. 
104). 


1277  CRIMINAL  PROCEDURE,  §  547 

Authority  of  magistrates.— The    power    conferred 
by  this  section  is  common  to  any  judge  or  justice  of 
the  peace   (Ex  parte,    Gist,  26  Ala.    156;   Bacnall   v. 
Ableman,  4  Wis.   163);  and  a  commissioner  has  all 
the  powers  of  a  justice  of  the  peace  or  State  magis- 
trate in  the  arrest    and    commitmsnt    of    offenders 
against  United  States  laws  (Ex  parte  Kaine,  10  N.  Y. 
Leg.   Obs.  257;   Fed.   Cas.   No.   7598.)     A  district  at- 
torney has  no  authority  to  order    the  marshal  not 
to  execute  a  wan-ant  issued  by  a  commissioner.     (U. 
'S.  V.  Scroggins,  3  Woods,  529;  Fed.  Cas.  No.  16244.) 
It    is   to   be   exercised   according   to  such   form   and 
manner  as  the  judge  may  see  fit  to  adopt,  agreeably 
to  the  usual   mode  adopted  in  the  State.     (Bagnall 
V.   Ableman,  4  Wis.   163.)     It   was   the  intention   to 
assimilate   all  proceedings   for  holding  accused   per- 
sons to  answer  for  crime  to  the  proceedings  had  for 
similar  offenses  in  the  State  courts.     (U.  S.  v.  Har- 
den,  10  Fed.    Rep.    803;  4    Hughes,    455;    U.   S.   v. 
Eundlett,  2  Curt.  41;  Fed.  Cas.  No.  16208;  U.  S.  v. 
Horton's  Securities  2  Dill.  94;  Fed.  Cas.   No.   15393; 
United  States  v.  Dunbar,  83  Fed.  Rep.  151.)  The  term 
"mode  of  process"  is  synonymous  with  mode  of  pro- 
ceeding,   and    includes   the   power   to   admit   to   bail. 
(U.  S.  V.  Rundlett,  2  Curt.  41;  Fed.  Cas.  No.  16208.) 
When  a  judge  sits  to  hear  a  criminal   charge  and 
commit  for  trial,  he  acts  as  a  judge  and  not  as  a  coiu-t. 
(U.  S.  V.  Clarke,  1  Gall.  497;  Fed.    Cas.  No.    14804; 
United   States   v.    Hughes,    70   Fed.    Rep.   972.)     The 
authority  of  a  United   States   commissioner  to  take 
bail  for  the  appeai'ance  of  an  accused  person  to  an- 
swer   further    depends    upon  the  laws  of  the  State 
giving  authority  to    examining    magistrate    (United 
States  T.    Saner,  73  Fed.   Rep.   671).     United   States 
commissioners   have  no  authority  to  pass  upon  the 
credibility  of  testimony,  or  to  find  any  fact  (United 
States  V.  Hughes,  70  Fed.  Rep.  972).     Commissioners 


§  547  CRIMINAL  PKOCEDUBE.  1278 

have  the  same  power  to  take  bail  upon  an  aiTest 
made  after-  an  indictment  as  they  have  in  cases  of 
arrest  before  indictment  (Hoeffner  v.  United  States, 
87  Fed.  Rep.  185).  A  charge  of  perjury  cannot  be 
predicated  upon  an  oath  administered  by  a  commis- 
sioner in  taking  bail  in  a  criminal  case  in  a  State 
where  the  State  laws  do  not  authorize  justices  of  the 
peace  to  administer  oaths  for  similar  purposes  (United 
State  V.  Garcelon,  82  Fed.  Rep.  611). 

Issuance  of  warrant.— It  is  the  duty  of  the  magis- 
trate to  award  a  warrant  whenever  complaint  is 
made  to  him  on  oath  that  a  crime  has  been  commit- 
ted, whether  applied  for  by  the  disti-ict  attorney  or 
any  other  person  (U.  S.  v.  fei^iuner,  2  Wheel.  C.  C. 
232;  Fed.  Cas.  No.  1(>S09);  but  the  oath  of  the  com- 
plainant is  necessary  (U.  S.  v.  Mackenzie,  1  N.  Y. 
Leg.  Obs.  227;  Fed.  Cas.  No.  15690j;  and  the  party 
who  makes  the  oath  must  have  personal  knowledge 
of  the  commission  of  the  offense  (U.  S.  r.  Burr,  2 
Wheel.  C.  C.  573;  Fed.  Cas.  No.  14G92;  In  re  Com- 
missioners, 3  Woods,  502;  Fed.  Cas.  No.  1212G);  but 
a  court  may  issue  a  warrant  upon  probable  cause 
supported  by  oath.  (U.  S.  v.  Bollman,  1  Cranch  C. 
C.  373;  Fed.  Cas.  No.  141522);  but  not  upon  a  com- 
plaint made  upon  information  and  belief  only  (United 
States  V.  Collins,  79  Fed.  Rep.  65).  If  the  signature 
of  a  magistrate  is  in  pencil  the  warrant  is  void. 
(U.  S.  V.  Thompson,  2  Cranch  C.  C.  409;  Fed.  Cas. 
No.  1G484.)  A  Avarrant  will  not  issue  to  arrest  an 
officer  wliile  his  conduct  is  under  investigation  by 
a  naval  court  of  inquiry  regularly  organized.  (U.  S. 
V.  Mackenzie,  1  N.  Y.  Leg.  Obs.  227;  Fed.  Cas.  No. 
15690.)  A  party  arrested  in  a  civil  action  for  dam- 
ages for  conversion,  who  is  already  held  to  bail  on 
criminal  cliarges  growing  out  of  the  same  transac- 
tion is  entitled  to  a  reduction  in  the  amount  of  bail. 
(Smith   V.   Lee,   13  Fed.   Rep.  28.)     As   to  an-est  In 


1279  CEIMINAL  PKOCEDUKE.  §  547 

civil  actions,  see  U.  S.  v.  Griswold,  11  Fed.  Rep. 
807;  S.  C,  6  Saw.  255.  When  a  crime  has  been 
committed  by  a  corporation  the  court  obtains  juris- 
diction over  it,  in  the  absence  of  statutory  provision, 
by  any  appropriate  writ  for  that  purpose  (United 
States  V.  John  Kelso  Co.,  86  Fed.  Rep.  304). 

Preliminary  proceedings. — A  magistrate  is  not  gen- 
erally bound  to  investigate  charges  known  to  the 
district  attorney,  and  which  he  declines  to  prosecute. 
(U.  S.  V.  Maclienzie,  1  N.  Y.  Leg.  Obs.  227;  Fed.  Cas. 
No.  15690.)  A  marshal  who  has  arrested  a  person 
may  talie  him  before  a  justice  of  the  peace  to  be 
admitted  to  bail  (U.  S.  v.  Milbuni,  4  Cranch  C.  C. 
478;  Fed.  Cas.  No.  15765);  and  a  commitment  for  ex- 
amination should  noft  exceed  twenty-four  houi-s  un- 
less special  cause  is  shown,  except  at  the  request 
of  the  accused.  (U.  S.  v.  Worms,  4  Blatchf.  332;  Fed. 
Cas.  No.  16765.)  A  commissioner  has  no  authority 
to  ball  the  offender  if  the  State  magistrates  have  no 
power  (U.  S.  v.  Case,  8  Blatchf.  250;  Fed.  Cas.  No. 
14742;  U.  S.  v.  Sauer  73  Fed.  Rep.  671);  but  other- 
wise, if  the  State  magistrates  have  such  power  (U.  S. 
V.  Rundlett,  2  Curt.  41;  Fed.  Cas.  No.  16208;  U.  S. 
V.  Horton's  Securities,  2  Dill.  94;  Fed.  Cas.  No. 
15393.)  The  material  parts  of  a  recognizance  to  ap- 
pear, and  of  its  condition,  sliould  be  set  forth  in  the 
body  of  it  so  as  to  admit  of  extension  consistently 
with  its  terms  (DUlingham  v.  U.  S.,  2  Wash.  O.  G. 
422;  Fed.  Cas.  No.  3913.)  And  it  is  essential  that 
the  party  recognized  to  appear  should  be  solemnly 
warned  to  appear  before  default  is  entered.  (Dilling- 
ham V.  U.  S.,  2  Wash.  C.  C.  422;  Fed.  Cas.  No.  3913.) 
A  commissioner  may  order  an  adjournment  to  a  more 
convenient  place,  and  this  power  includes  adjourn- 
ments as  to  time  and  place  (U.  S.  v.  Rundlett,  2  Curt. 
41;  Fed.  Cas.  No.  16208);  and  if  the  accused  is  under 
bail  to  appear  at  an  adjourned  day,  second  adjourn- 


§  547  CRIMINAL  PROCEDURE.  1280 

Dient  cannot  be  made  until  he  appears  or  is  legally 
put  in  default.  (U.  S.  v.  Kundlett,  2  Curt.  41;  Fed. 
Cas.  No.  111208.)  An  arrest  for  trial  may  be  made, 
to  be  followed  by  imprisonment  if  no  bail  is  taken, 
or  by  bail,  though  punishment  may  be  by  fine  alone 
(In  re  Jackson,  14  Blatehf.  245;  Fed.  Cas.  No.  7124.) 
This  section  does  not  apply  to  an  arrest  made  for 
the  purpose  of  extradition.  (In  re  Henrich,  5  Blatehf. 
414;  Fed.  Cas.  No.  Q'669.)  A  Chinese  person  who  is 
otherwise  entitled  to  remain  in  the  United  States, 
cannot  be  deported  for  his  refusal  to  be  sworn  to 
testify  (Ex  parte  SJng,  82  Fed.  Kep.  22). 

Preliminary  examination. — A  commissioner  for  the 
purposes  of  a  preliminary  examination  has  only  the 
power  and  authority  of  a  committing  magistrate,  and 
he  must  proceed  "agreeably  to  the  usual  mode  of 
IH'ocess  against  offenders"  before  State  magisti-ates 
(In  re  Martin,  5  Blatehf.  a03;  Fed.  Cas.  No.  9151);  and 
he  maj'  be  directed  to  certify  the  proceedings  into 
the  court,  that  it  may  be  there  considered  (U.  S. 
V.  Berry,  4  Fed.  Rep.  779;  2  McCrary,  58);  and  if  the 
magistrate  takes  money  from  the  person  of  the  ac- 
cused, a  summary  order  for  its  return  may  issue 
from  the  court.  (Ex  parte  Craig,  4  Wash.  C.  C.  710; 
Fed.  Cas.  No.  3321.)  The  accused  may  at  the  hear- 
ing be  represented  by  counsel.  (U.  S.  v.  BoUman,  1 
Cranch  C.  O.  373;  Fed.  Cas.  No.  14t;22.)  Witness  for 
the  accused  present  at  the  commission  of  the  offense 
may  be  examined  to  explain  wliat  is  said  by  the 
witnesses  for  the  prosecution  (U.  S.  v.  Wliite,  2  Wash. 
C.  C.  29;  Fed.  Cas.  No.  10U85);  but  a  magistrate 
cannot  issue  process  into  another  State  to  summon 
witnesses  for  the  accused.  (U.  S.  v.  White,  2  Wash. 
C.  C.  29;  Fed.  Cas.  No.  lGl>85.)  The  district  attor- 
ney may  appear  to  attend  to  the  presentation  of  evi- 
dence, as  counsel  for  the  government,  and  he  cannot 
dismiss  the  proceedings.     (U.  S.  v.  Schumann,  7  Sawy. 


1281  CRIMINAL  PROCEDURE.  §  547 

439;  2  Abb.  C.  C.  523;  Fed.  Cas.  No.  16235.)  Wit- 
nesses for  the  prosecutiou  canuot  be  examined  (U.  H. 
V.  White,  2  Wash.  C.  G.  29;  Fed.  Gas.  No.  166S5;  U.  S. 
V.  Burr,  1  Burrs  Trial,  177).  Witnesses  for  accused 
are  not  generally  examined  on  an  application  to  bind 
him  over  to  answer  a  criminal  charge.  (U.  S.  v. 
White,  2  Wash.  G.  0.  29;  Fed.  Gas.  No.  1G685.)  The 
preliminary  examination  is  to  take  place  in  the  dis- 
ti'ict  where  the  offender  is  found  without  regard  to 
where  the  offense  was  committed  (Anonymous,  1 
Woolw.  422;  Fed.  Gas  No.  730);  and  the  prisoner 
should  be  brought  before  the  officer  to  establish  his 
identity,  as  the  finding  in  another  district  estab- 
lished nothing  as  to  his  identity.  (Anonymous,  1 
Woolw.  422;  Fed.  Gas.  No.  730;  Bagnall  v.  Ableman, 
4  Wis.  163.) 

Commitment.— If  the  indictment  contains  incon- 
sistent allegations  and  charges  an  impossible  crime, 
the  accused  will  be  dischai-ged  (U.  S.  r.  Pope,  24 
Int.  Rev.  Rec.  29;  Fed.  Gas.  No.  16009);  but  if  dis- 
charged he  may  be  again  ai*rested.  The  action  of 
the  commissioner  is  not  final  as  to  the  commitment 
or  discharge  of  the  prisoner.  (In  re  Martin,  5  Blatchf, 
303;  Fed.  Cas.  No.  9151;  U.  S.  v.  Burr,  1  Buit's  Tfial, 
79.)  A  certified  copy  of  an  information  which  was 
not  filed  upon  cause  shown  is  not  sutficient  evidence 
to  .iustify  a  commitment.  (U.  S.  v.  Shepard,  1  Abb. 
C.  G.  431;  Fed.  Gas.  No.  16273.)  The  presence  of 
witnesses  ought  to  be  obtained.  (U.  S.  v.  Burr,  1 
Burr's  Trial,  97.)  An  affidavit  made  before  one  com- 
missioner is  admissible  before  another.  (Ex  pai-te 
Bollman,  4  Cranch,  75;  S.  G.,  1  Granch  G.  G.  373;  Fed. 
Cas.  No.  14622;  U.  S.  v.  Burr,  1  Burr's  Trial,  97.) 
The  court  may  commit  the  prisoner  for  trial  although 
the  grand  jury  is  in  session  and  the  order  does  not 
cease  on  the  assembling  of  the  grand  jury.  (U.  S. 
V.  Burr,  1  Burr's  Trial,  97.)     If  the  sessions  of  the 


§  547  CEIMINAL  PKOCEDUnE.  1282 

court  are  interrupted  by  rebellion,  the  prisoner  can- 
not be  committed  for  an  indefinite  time.  (U.  S.  v. 
Greiner,  4  Pbila.  396;  Fed.  Gas.  No.  15262.)  To  war- 
rant a  commitment  tlie  fact  of  the  commission  of  an 
offense  may  be  proved  by  the  confession  of  the  pris- 
oner. (U.  S.  V.  Bloomgart,  2  Ben.  356;  Fed.  Gas.  No. 
14612.)  Probable  cause  must  be  shown  to  justify  a 
commitment,  and  probable  cause  must  be  made  out 
by  proof  furnishing  good  reason  to  believe  that  the 
crime  alleged  has  been  committed  by  the  person 
charge<l.  (In  re  Martin,  5  Blatchf.  303;  Fed.  Gas. 
No.  9151;  U.  S.  V.  Lumsden,  1  Bond,  5;  Fed.  Gas. 
No.  15641;  U.  S.  v.  Burr,  1  Burr's  Trial,  11;  In  re  Van 
Gampen,  2  Ben.  419;  Fed.  Gas.  No.  16S35.)  And  a 
certified  copy  of  an  indictment,  if  uncouti-adicted,  is 
suflicient  proof  of  probable  cause  (In  re  Glark,  2 
Ben.  540;  Fed.  Gas.  No.  2797;  In  re  Alexander,  1  Low. 
530;  Fed.  Gas.  No.  162;  U.  S.  v.  Haskins,  3  Sawy. 
262;  Fed.  Gas.  No.  15322.)  Although  the  indictment 
is  quashed  the  court  may  commit  to  await  a  new  in- 
dictment. (U.  S.  V.  To-wan-ga-ca,  Hemp.  299;  Fed. 
Gas.  No.  16533  a.) 

Warrant  of  commitment.— A  warrant  of  commit- 
meat  must  be  under  seal  (Ex  parte  Sprout  1  Granch 
C.  C.  421;  Fed.  Gas.  No.  132U7;  Ex  parte  Bennett.  2 
Cranch  G.  G.  612;  Fed.  Gas.  No.  1313);  but  if  a  com- 
missioner has  no  seal  and  is  not  lequired  to  keep 
one  a  warrant  is  not  void  for  omission  of  a  seal  (Starr 
V. United  States,  153  U.S.  614);  it  must  show  sufficient 
cause  on  its  face  (Ex  parte  Bennett.  2  Granch  G.  C. 
612;  Fed.  Gas.  No.  1311;  U.  S.  v.  Brown,  4  Granch  C. 
C.  333;  Fc^.  Gas.  No.  14<;.59;  Ex  parte  Williams,  4 
Granch  G.  G.  343),  and  must  state  some  good  cause 
certain  supporttnl  by  oath  (Ex  parte  Buford,  1  Cranch 
G.  G.  276;  Fed.  Gas.  No.  2148;  S.  G.,  3  Granch,  448; 
Ex  parte  Sprout,  1  Granch  C.  G.  424;  Ex  parte  Ben- 
nett, 2  Cranch  C.  C.  612;  Fed.  Gas.  No.   1311);  and 


1283  CBIMINAL  PEOCEDURE.  §  547 

fix  the  time  for  imprisonment.  (Ex  parte  Sprout,  1 
Cranch  C.  G.  424;  Fed.  Gas.  No.  13267.)  A  commitment 
written  on  tlie  back  of  tlie  warrant  is  not  sufficient 
unless  it  charges  a  crime.  (U.  S.  v.  Brown,  4  Granch 
C.  C.  333;  Fed.  Gas.  No.  14659.)  The  marshal  is  lia- 
ble in  a  case  where  the  judge  had  no  jurisdiction  or 
authority  to  issue  the  same.  (Bagnall  v.  Ableman, 
4  Wis.  163.)  It  is  an  offense  to  obstruct,  oppose,  or 
resist  the  United  States  marshal  while  executing  or 
attempting  to  execute  any  lawful  writ  or  process. 
(U.  S.  V.  Doyle,  6  Saw.  612;  5  Fed.  Rep.  6S0.) 

Removal  of  prisoner  to  another  district. — An 
offender  against  the  laws  of  the  United  States  may 
be  removed  into  a  district  in  a  territory  as  well  as  in 
a  State.  (United  States  v.  Haskins,  3  Saw.  262;  Fed. 
Gas.  No.  15322.)  So  a  party  arrested  elsewhere  may 
be  removed  into  the  district  of  Golumbia  for  trial. 
(In  re  Buell,  8  Dill.  116;  Fed.  Gas.  No.  2102;  In  re 
Price,  83  Fed.  Rep.  830.)  A  warrant  for  removal  is 
authorized  only  where  the  offender  has  been  arrested 
and  committed  for  want  of  bail.  (United  States  v. 
Shepard.  1  Abb.  U.  S.  431;  Fed.  Gas.  No.  16273.)  He 
has  a  right  to  an  examination,  and  to  be  let  to  bail. 
(Bagnall  v.  Ableman,  4  Wis.  163.)  A  removal  cannot 
be  had  where  there  has  been  neither  an  indictment 
nor  an  examination  before  a  commissioner  in  either 
district,  involving  an  inquiry  as  to  the  alleged  crime. 
(United  States  v.  Garlin,  86  Fed.  Rep.  963.)  The  in- 
dictment must  be  considered  sufficient  unless  so  de- 
fective that  it  would  be  the  manifest  duty  of  the 
court  to  decline  to  take  jurisdiction  (In  re  Glark,  2 
Ben.  540;  Fed.  Gas.  No.  2797);  but  a  mere  copy  of  the 
indictment  is  not  sufficient  if  not  sufficient  under  the 
State  law.  (Bagnall  v.  Ableman,  4  Wis.  163.)  If  it  does 
not  charge  an  offense  triable  in  the  district  to  which  it 
is  sought  to  be  removed  the  judge  may  refuse  to  issue 
the  warrant.     (In  re  Buell,  3  Dill.  116;  Fed.  Gas.  No. 


§  547  CRIMINAL  PROCEDURE.  1284 

2102.)  If  it  appears  from  the  indictment  that  the 
court  has  no  jurisdiction  of  the  offense  the  defendant 
should  be  discharged.  (United  States  v.  Lee,  8i  Fed. 
Rep.  G2G;  In  re  Coraing,  51  Fed.  Kep.  20.j;  Horner  v. 
United  States,  143  U.  S.  207.)  Whether  the  indictment 
shows  an  offense  maybe  examined  into  on  application 
for  the  warrant  of  removal  (Ex  parte  Buell,o  Dill. lib- 
Fed.  Cas.  No.  2102),  and  if  the  prisoner  is  in  custody 
of  the  marshal,  he  cannot  be  removed  into  the  other 
district,  although  there  charged  with  a  higher  offense. 
(United  States  v.  Bm-r,  2  Burr's  Trial,  451;  United 
States  V.  Corrie,  23  Law.  Eep.  145;  Fed.  Gas.  No. 
14869.)  Where  it  appears  that  the  act  alleged  does 
not  constitute  an  offense  against  the  United  States, 
or  that  no  tibial  can  be  had  in  the  disti-ict  to  which 
the  removal  is  sought,  it  is  the  duty  of  the  judge  to 
refuse  the  warrant.  (In  re  Doig,  4  Fed.  Rep.  103;  In 
re  Buell,  3  Dill.  110;  Fed.  Gas.  No.  2102;  In  re  Glark, 
2  Ben.  540;  Fed.  Gas.  No.  2707.)  A  prisoner  in  cus- 
tody of  a  marshal  is  entitled  to  notice  of  removal  and 
an  opportunity  to  present  to  the  judge  anj^  objections 
he  may  have  to  such  removal.  (In  re  Beshears,  79 
Fed.  Rep.  70.)  The  power  to  order  a  removal  rests 
on  the  judge,  and  the  words  "judge  of  the  district" 
may  be  held  to  include  any  judge  of  the  district. 
(Anon.,  1  Woolw.  422;  Fed.  Gas.  No.  730;  United 
States  V.  BuiT,  2  Burr's  Trial,  451.)  The  judge  of  the 
district  to  whom  application  is  made  may  review 
witliout  a  writ  a  habeas  corpus  the  action  of  the 
committing  magistrate,  and  may  reduce  the  bill  re- 
quired by  him.  (United  States  v.  Brawner,  7  Fed. 
Rep.  87.)  Under  this  section,  the  judge  of  the  United 
States  district  court  is  invested  witii  i)lenary  power 
to  grant  or  refuse  a  wan-ant  of  removal  of  a  party 
arrestetl  and  coniniilted  for  crime  for  ti'ial  in  anotlier 
district.  (United  States  v.  Rogers.  23  Fed.  Rep.  058.) 
The  f-ourt  has  not  only  the  rigiit.  but  the  duty,  to  look 
Into  the  indictment  so  far  as  to  be  satisfied  that  an 


1285  .  CRIMINAL  PROCEDUKE.  §  548 

offense  against  the  United  States  is  cliarged.  and  that 
it  is  such  an  offense  as  may  be  lawfully  tried  In  the 
forum  to  which  the  removal  is  asked.  (United  States 
V.  Horner,  44  Fed.  Kep.  677.)  As  to  the  practice  of 
removal  in  the  southern  district  of  New  York,  see 
United  States  v.  Price,  84  Fed.  Rep.  636.  Where  all 
the  acts  constituting  the  offense  were  committed  ou 
the  high  seas,  the  accused  must  be  tried  in  the  dis- 
trict where  he  was  arrested  and  should  not  be  re- 
moved. (United  States  v.  Hughes,  70  B^ed.  Rep.  972.) 
The  question  of  the  identity  of  the  oft"ender  is  a  ques- 
tion of  fact  which  the  United  States  commissioner 
has  full  jurisdiction  to  decide  for  the  purpose  of  re- 
moval. (Horner  v.  United  States,  143  U.  S.  207.)  A 
warrant  of  removal  which  directs  the  marshal  to  re- 
move the  offender  to  another  district,  "to  be  tried  in 
said  district  upon  such  counts  in  the  indictment  now 
pending  in  said  district  as  he  can  be  legally  tried 
upon,"  is  sufficient.  (Horner  v.  United  States,  143  U.  S. 
207.)  Judges  of  the  district  courts  have  no  power  to 
cause  the  arrest  of  a  citizen  of  a  State,  to  be  there 
imprisoned  until  he  obeys  an  order  made  in  a  civil 
case  pending  in  the  United  States  courts  in  that 
State.     (In  re  Graves,  129  Fed.  Rep.  60. 

§  548.  Bail  admitted  in  cases  not  capital. — 
Bail  shall  be  admitted  upon  all  arrests  in  criminal 
cases  where  the  offense  is  not  punishable  by  death; 
and  in  such  cases  it  may  be  taken  by  any  of  the 
persons  authorized  by  the  preceding  section  to  ar- 
rest and  imprison  offenders.  (Kev.  Stats,  see. 
1015.) 

Bail.— The  court  cannot  grant  the  right  to  give  bail 

without  authority  to  do  so  by  law.     (United  States  v. 

Hudson,    6.5    Fed.  Rep.    68.)     "Bail"  means    security 

taken  for  the  appearance  of  the  party  accused  at  the 

Fed.  Proc— 108. 


§  548  CRIMINAL   PROCEDURE.  .  1286 

time  and  place  of  trial  (United  States  v.  Case,  8 
Blatchf.  250;  Fed.  Cas.  No.  14742),  and  money  cannot 
be  taken  in  lieu  thereof.  (United  States  v.  Case,  8 
Blatclif.  250;  Fed.  Cas.  No.  14742.)  To  require  a 
larger  bail  than  the  prisoner  can  give  is  to  require 
excessive  bail,  and  to  deny  bail.  (United  States  v. 
Lawrence,  4  Cranch  C.  C.  518;  Fed.  Cas.  No.  15577.) 
The  discretion  of  the  magistrate  must  be  guided  by 
the  consideration  of  the  ability  of  the  prisoner  to  give 
bail,  and  of  the  atrocity  of  the  crime.  (United  States 
V.  Lawrence,  4  Cranch  C.  C.  518;  Fed.  Cas.  No.  1.5577.) 
If  the  offense  is  indictable  a  corrupt  motive  cannot  be 
imputed  to  the  magistrate  on  account  of  the  smallness 
of  the  bail.  (United  States  r.  Smith  4  Cranch  C.  C. 
727;  Fed.  Cas.  No.  16330.)  Under  this  section  bail  may 
be  admitted  by  a  circuit  court  commissioner  upon 
all  arrests  in  criminal  cases  where  the  offense  is  not 
puuisliable  by  death.  (United  States  v.  Jones,  134 
U.  S.  483.)  The  Oregon  statute  limiting  the  power  to 
give  bail  upon  an  appeal  to  the  judge  where  the  judg- 
ment was  given  does  not  impair  the  power  of  any 
officer  designated  by  the  United  States'  statute  to  ad- 
mit a  defendant  to  bail  after  indictment  and  before 
trial.  (United  States  v.  Dunbar,  83  Fed.  Rep.  151.) 
The  undertaking  need  not  recite  that  defendant  has 
been  admitted  to  bail  or  the  number  of  the  section 
of  Revised  Statutes,  alleged  to  have  been  violated. 
(United  States  v.  Dunbar.  83  Fed.  Rep.  151.)  No  re- 
quest to  the  sureties  is  required  to  produce  a  prisoner 
except  that  duly  given  in  open  court  at  the  time  reg- 
ularly set  down  for  trial.  fUnite<l  States  v.  Dunbar. 
83  Fed.  Rep.  158.)  The  bail  bond  is  not  void  if  taken 
in  pursuance  of  an  order  of  a  commissioner  though 
tlie  information  charge  no  offense.  (Hardy  v.  Unite<l 
States.  30  U.  S.  Api).  225;  71  Fe<i.  Kep.  158.)  The 
form  of  a  bail  l)ond  taken  by  a  United  States  com- 
missioner should  conform  in  all  substantial  particu- 


1287  CRIMINAL  PROCEDURE.  §  548 

lars  to  the  requirements  of  the  law  of  the  State  in 
which  the  commissioner  is  sitting.  (United  States  v. 
Saner,  73  Fed.  Kep.  671.)  In  enforcing  a  forfeited 
bond  talien  in  a  criminal  ease,  the  United  States  is 
not  restricted  to  the  remedies  provided  by  the  laws 
of  the  State  (United  States  v.  Insley,  12  U.  S.  App. 
125;  54  Fed.  Rep.  221.) 

Admission  to  bail. — If  a  prisoner  is  sick,  and  his 
disease  is  such  that  confinement  must  be  injurious 
and  may  be  fatal  he  may  be  admitted  to  bail  (United 
States  V.  Jones,  3  Wash.  O.  C.  224;  Fed.  Cas.  No. 
15495);  but  the  continuance  of  a  cause  alone  is  no 
ground  for  admission  to  bail.  (United  States  v.  Jones, 
3  Wash.  C.  C.  224;  Fed.  Cas.  No.  1,5495.)  Although  a 
party  has  forfeited  his  right  to  bail  by  absconding, 
yet  he  may  be  let  to  bail  if  there  will  be  a  delay  in 
the  trial  (United  States  v.  Lee,  6  Phila.  96;  Fed.  Cas. 
No.  8180);  and  on  his  subsequent  appearance  he  may 
be  required  to  give  additional  security  (United  States 
V.  Feely,  1  Brocli,  255;  Fed.  Cas.  No.  15082);  and  a 
recognizance  given  after  judgment  on  plea  of  guilty 
stricken  out  is  binding  on  the  sureties.  (Basset  v. 
United  States,  9  Wall.  38.)  A  party  absconding  can- 
not, after  recapture,  demand  to  be  admitted  to  bail  as 
a  matter  of  right.  (United  States  v.  Dee,  6  Phila.  96; 
Fed.  Cas.  No.  8180.)  This  court  may  admit  to  bail 
on  the  charge  of  high  treason.  (United  States  v.  Ham- 
ilton, 3  Dall.  17;  United  States  v.  Stewart,  2  Dall.  343.^ 

Recognizance. — A  recognizance  is  sufficient  if  it 
sets  out  the  act  without  any  particulars  (United 
States  V.  Dennis.  1  Bond,  103;  Fed.  Cas.  No.  14949; 
United  States  v.  Dunbar,  83  Fed.  Rep.  151);  but  if  it 
does  not  set  out  an  act  made  an  offense  by  act  of 
Congi-ess  it  is  void.  (United  States  v.  Hand,  6  McLean, 
274;  Fed.  Cas.  No.  15296.)  It  is  valid  although  the 
parties  do  not  sign  it  (United  States  v.  Pickett,  1 
Bond,  123;  Fed.  Cas.  No.  16043);  but  the  signature  of 


§  54:8  CRIMINAL  PROCEDURE.  12S8 

a  person  to  a  recognizance  on  a  subsequent  day  does 
not  make  liim  a  party  to  it  if  his  name  does  not  ap- 
pear on  the  body  of  the  instrument.  (United  States  v. 
Pickett,  1  Bond,  123;  Fed.  Cas.  Na.  10043.)  A  single 
recognizance  for  a  total  amount  is  void  where  sep- 
arate recognizances  ai"e  required.  (United  States  v. 
Goldstein,  1  Dill.  413;  Fed,  Cas.  No.  15226.)  A  recog- 
nizance of  bail  in  a  criminal  case  is  a  means  of  com- 
pelling the  party  to  submit  to  trial  and  punishment. 
(Ex  parte  Milburn,  9  Peters,  704.)  It  is  no  defense  to 
a  recognizance  that  it  was  taken  and  acknowledged 
by  the  clerk  of  the  district  court  where  this  was  done 
by  order  of  the  judge  at  the  request  of  the  accused 
(Hunt  v.  United  Stales,  27  U.  S.  App.  287;  63  Fed. 
Rep.  5(38);  and  it  is  no  objection  to  such  recognizance 
that  a  w^arrant  for  the  removal  of  the  accused  from 
the  district  where  ai-rested,  was  not  signed  by  the 
proper  judicial  officer.  (Hunt  v.  United  States,  19  U.  S. 
App.  683;  61  Fed.  Hep.  795.) 

Power  to  take  bail.— The  power  to  take  bail  is  in 
the  discretion  of  the  court.  (United  States  v.  Burr, 
1  Burr's  Trial,  79.)  The  court  cannot  grant  the  right 
to  give  bail  without  authority  to  do  so  by  law. 
(United  States  r.  Hudson,  65  Fed.  Rep.  68.)  So  a 
commissioner  has  the  same  power  as  a  State  magis- 
trate. (United  States  v.  Hortou's  Securities,  2  Dill. 
94;  Fed.  Cas.  No.  15393.)  And  he  may  release  a  party 
on  bail  at  any  time  before  issuing  the  wai-ant  for  re- 
moval. (United  States  v.  Volz,  14  Blatchf.  15;  Fed. 
Cas.  No.  16027.)  A  justice  of  the  peace  has  no  power 
to  admit  to  bail  aftei*  commitment.  (United  States  v. 
Faw,  1  Cranch  C.  C.  480;  Fed.  Cas.  No.  15078.)  A 
clerk  may  take  the  acknowledgment,  and  justify  the 
obligors  to  a  bail  bond  (United  States  v.  Evans,  2 
Fed.  Rep.  147;  2  Flip.  005);  and  a  recognizance  good 
as  a  common-law  bond  will  be  good  as  a  statutory 
bond.  (United  States  v.  Evans,  2  Fed.  Rep.  147;  2 
Flip.  605.) 


1289  CRIMINAL  PEOCEDURE.  §  549 

Liability.— A  recognizance  to  appear  from  day  to 
day  is  not  discharged  by  qnasliing  tlie  indictment 
(United  States  v.  White,  5  Cranch  C.  C.  368;  Fed.  Oas. 
No.  16678);  but  if  accused  appears  at  the  next  term, 
and  the  court  passes  away  without  taking  any  order 
respecting  him,  he  is  discharged.  (United  States  v. 
Burr,  1  Burr's  Trial,  79.)  So  an  agreement  to  con- 
tinue the  case  for  an  indefinite  period  discliarges  the 
bail.  (Reese  v.  United  States,  9  Wall.  13.)  The  ac- 
cused must  appear  on  the  first  day  of  the  term 
(United  States  r.  Hodgkin,  1  Oranch  C.  C.  510;  Fed. 
Cas.  No.  15375);  and  if  he  forfeits  his  recognizance  a 
motion  in  arrest  of  judgment  will  not  be  heard  till 
he  appears  and  submits  to  the  jurisdiction  of  the 
court  (United  States  v.  Askins,  4  Cranch  C.  C.  98; 
Fed.  Cas.  No.  14471;  United  States  v.  Erskine,  4 
Cranch  C.  C.  499;  Fed.  Cas.  No.  15057);  and  proceed- 
ings to  enforce  the  default  may  be  stayed  to  await 
his  trial.  (United  States  v.  Feely,  1  Brock.  255;  Fed. 
Cas.  No.  15082.)  The  death  of  the  principal  after  de- 
fault will  not  exonerate  the  sureties.  (United  States 
V.  Van  Fossen,  1  Dill.  406;  Fed.  Cas.  No.  1G6U7.)  Nor 
will  his  subsequent  imprisonment  and  eonriction 
under  State  laws  exonerate  the  bail.  (United  States 
V.  Van  Fossen,  1  Dill.  406;  Fed.  Cas.  No.  16b07.) 

§  549.  Bail  admitted  in  capital  cases. — Bail 
may  be  admitted  upon  all  arrests  in  criminal  cases 
where  the  punishment  may  be  death;  but  in  such 
<"-ases  it  shall  be  taken  only  by  the  supreme  court 
or  a  circuit  court,  or  by  a  justice  of  the  supreme 
court,  a  circuit  judge,  or  a  judge  of  a  districc 
court,  who  shall  exercise  their  discretion  therein, 
having  regard  to  the  nature  and  cireinustance  of 
the  offense,  and  of  the  evidence,  and  to  the  usages 
of  law.     (Eev.  Stats,  sec.  1016.) 


§§550-551  CRIMINAL  PROCEDURE.  1290 

Note. — A  person  chargecl  with  treason  may  be  ad- 
mitted to  bail  (United  States  v.  Hamilton,  3  Dall.  17; 
1  Burr's  Ttial,  310);  but  not  except  under  strong  cir- 
cumstances after  indictment.  (United  States  v. 
Stewart,  2  Dall.  343;  1  Burr's  Trial,  310.)  The  sura 
should  be  sufficient  to  insure  the  appearance  of  the 
party,  but  not  so  great  as  to  be  oppressive.  (1  Burr's 
Trial,  18,  104.) 

§  550.  Bail  in  criminal  cases  removed  to  su- 
preme court  from  State  courts. — When  a  writ  of 
error  is  issued  for  the  revision  of  the  judgment 
of  a  State  court,  in  any  criminal  proceeding  where 
is  drawn  in  question  the  validity  of  a  statute  of, 
or  an  authority  exercised  under,  the  United  States, 
or  where  any  title,  right,  privilege,  or  immunity 
ii,  claimed  under  the  constitution,  or  any  statute 
of,  or  commission  held  or  authority  exercised  un- 
der the  United  States,  the  defendant,  if  charged 
with  an  offense  that  is  bailable  by  the  laws  of  such 
State,  shall  not  be  released  from  custody  until  a 
final  judgment  upon  such  writ,  or  until  a  bond, 
with  sufficient  sureties,  in  a  reasonable  sum,  as 
ordered  and  approved  by  the  State  court,  is  given: 
and  if  the  offense  is  not  so  bailable,  until  a  final 
judgment  upon  the  writ  of  error.  [See  sec.  709.] 
(Kev.  Stats,  sec.  1017.) 

§  551.  Surrender  of  criminals  by  their  bail. — 
Any  party  charged  with  a  criminal  offense  and  ad- 
mitted to  bail  may,  in  vacation,  be  arrested  by  his 
bail,  and  delivered  to  the  marshal  or  his  deputy, 
before  any  j^idge  or  other  officer  having  power  to 
commit  for  such  offense;  and  at  the  request  of 


1291  CRIMINAL  PKOCEDUKE.  §§  552-553 

such  bail,  the  judge  or  other  officer  shall  recommit 
the  party  so  arrested  to  the  custody  of  the  marshal, 
and  indorse  on  the  recognizance,  or  certified  copy 
thereof,  the  discharge  and  exoneratur  of  such  bail; 
and  the  party  so  committed  shall  therefrom  be  held 
in  custody  until  discharged  by  due  course  of  law. 
(Kev.  Stats,  sec.  1018.) 

§  552.     New  bail  to  be  given  in  certain  cases. — 

When  proof  is  made  to  any  judge  of  the  United 
States,  or  other  magistrate  having  authority  to 
commit  on  criminal  charges  as  aforesaid,  that  a 
person  previously  admitted  to  bail  on  any  such 
charge  is  about  to  abscond,  and  that  his  bail  is 
insufficient,  the  judge  or  magistrate  shall  require 
such  person  to  give  better  security,  or,  for  default 
thereof,  cause  him  to  be  committed  to  prison;  and 
an  order  for  his  arrest  may  be  indorsed  on  the  for- 
mer commitment,  or  a  new  warrant  therefor  may 
be  issued,  by  such  judge  or  magistrate,  setting 
forth  the  cause  thereof.     (Rev.  Stats,  sec.  1019.) 

^  553.  When  penalty  of  recognizances  may  be 
remitted. — When  any  recognizance  in  a  criminal 
cause  taken  for,  or  in,  or  returnable  to,  any  court 
of  the  United  States,  is  forfeited  by  a  breach  of  the 
condition  thereof,  such  court  may,  in  its  discre- 
tion, remit  the  whole  or  a  part  of  the  penalty, 
whenever  it  appears  to  the  court  that  there  haa 
been  no  willful  default  of  the  party,  and  that  a  trial 
can,  notwithstanding,  be  had  in  the  cause,  and 
that  public  justice  does  not  otherwise  require  the 
same  penalty  to  be  enforced.  (Rev.  Stats,  sec. 
1020.) 


§§  554-555  CRIMINAL  PROCEDUEE.  1292 

Eecognizance,  relief  of  the  surety. — Where  there 
Is  no  collusion  the  court  has  the  power  to  relieve  the 
surety  from  the  penalty  of  the  recognizance.  (United 
States  V.  Duncan,  10  Pittsb.  L.  J.  41;  Fed.  Cas.  No. 
15004.)  So  if  the  bail  produce  the  prisoner  they  may 
be  released,  although  the  delay  may  have  been  pre- 
judicial to  the  government  (United  States  v.  Duncan, 
10  nttsb.  L.  J.  41;  Fed.  Cas.  No.  15004);  but  the  pen- 
alty of  a  forfeited  recognizance  will  not  be  remitted 
upon  the  gi-ound  that  the  party  when  called  was  in 
custody  of  a  State  officer  on  a  criminal  charge. 
(United  States  v.  Sti-icker,  12  Blatchf.  389;  Fed.  Gas. 
No.  16410.)  If  the  ti'ial  for  a  misdemeanor  proceeds 
after  defendant  has  been  called  and  defaulted  and 
defendant  is  acquitted,  the  default  my  be  set  aside 
(United  States  v.  Santos,  5  Blatchf.  104;  Fed.  Cas. 
No.  1(j222);  but  if  there  is  good  cause  to  believe  ac- 
cused is  guilty,  default  will  not  be  set  aside.  (United 
States  V.  Mercer,  Deady,  502;  Fed.  Cas.  No.  15758.) 
If  judgment  has  been  entered  on  the  recognizance  it 
may  be  set  aside,  and  the  recognizance  respited  upon 
production  of  the  prisoner.  (United  States  v.  Duncan. 
10  Pittsb.  Tj.  J.  41;  Fed.  Cas.  No.  15004:  see  United 
States  V.  Cookendorfer,  5  Cranch  0.  0.113;  Fed.  Cas. 
No.  14S5G.) 

§  554.  Indictments. — N^o  indictment  shall  be 
fonnd,  nor  shall  any  presentment  he  made,  with- 
out the  concurrence  of  at  least  twelve  grand  jurors. 
(Rev.  Stats,  sec.  1021.) 

§  555.  Offenses  prosecuted  by  indictment  or  in- 
formation.— All  crimes  and  offenses  committed 
ajjainst  the  provision  of  chapter  seven,  title 
"Crimes,'^  which  are  not  infamous,  may  be  prose- 
cuted either  by  indictment  or  bv  information  filed 
by  a  district  attorney,     (Rev.  Stats,  see.  1023.) 


1293  CRIMINAL  PKOCEDUEE.  §  555 

Otfenses,  how  prosecuted.— Offenses  not  capital  or 
infamous  may,  in  the  discretion  of  ttie  court,  be 
prosecuted  by  information  (United  States  v.  Shep- 
pard,  1  Abb.  431;  Fed.  Gas.  No.  16273;  United  States 
V.  Maxwell,  3  Dill.  275;  Fed.  Gas.  No.  15750;  United 
States  V.  Bloclv,  4  Saw.  211;  Fed.  Gas.  No.  14609; 
United  States  v.  Baugh,  1  Fed.  Rep.  784;  but  see 
United  States  v.  Joe,  4  Chic.  L».  N.  105;  Fed.  Gas.  No. 
15478),  as  mere  misdemeanors.  (United  States  r. 
Waller,  1  Saw.  701;  Fed.  Gas.  No.  1G634;  United 
States  V.  Ebert,  1  Gent.  L.  J.  205;  Fed.  Gas.  No. 
15019.)  The  fact  that  an  offense  may  or  must  be 
punished  by  imprisonment  in  the  penitentiary  does 
not  necessarily  malie  it  infamous  (United  States  v. 
Maxwell,  3  Dill.  275;  Fed.  Gas.  No.  15750);  and  if  a 
crime  implies  a  total  want  of  truth  it  is  infamous, 
although  only  a  misdemeanor  (United  States  v.  Block, 
4  Saw.  211;  Fed.  Gas.  No.  14609);  but  the  species  of 
crimen  falsi  is  not  infamous  unless  it  injuriously  affect 
the  public  administration  of  justice  by  falsehood  and 
fraud.  (United  States  v.  Block,  4  Saw.  211;  Fed.  Gas. 
No.  14609.)  The  crimes  which  at  our  common  law 
rendered  a  person  infamous  were  treason,  felony,  and 
crimen  falsi.  (United  States  v.  Block,  4  Saw.  211; 
Fed.  Gas.  No.  14609.)  The  term  "infamous,"  at  com- 
mon law,  was  applied  to  certain  crimes  upon  the  con- 
viction of  which  a  person  was  incompetent  as  a  wit 
ness.  (United  States  v.  Block,  4  Saw,  211;  Fed.  Gas. 
No.  14009;  United  States  v.  Maxwell,  3  Dill.  275;  Fed. 
Gas.  No.  15750.)  The  following  crimes  have  been  held 
infamous,  the  conviction  whereof  was  sufBcient  to 
disqualify  a  person  as  a  witness:  larceny  (State  v. 
Gardner,  1  Root,  485),  or  knowingly  receiving  stolen 
goods  (Com.  V.  Rogers,  7  Met.  500;  but  see  Com.  v. 
Murphy,  3  Pac.  G.  D.  J.  390;  Fed.  Gas.  No.  30G7), 
forgery  (Poage  v.  State,  3  Ohio  St.  229;  State  v. 
Candler,  8  Hawks,  393),  and  all  crimes  which  create 


§  556  CKIMINAX  PROCEDURE.  1294 

a  violent  presumption  against  the  truthfulness  of  a 
party  under  oath.  (Utiey  v.  Merrick,  11  Met.  302.) 
It  is  not  the  character  of  the  punishment  but  the 
nature  of  the  act  that  makes  a  crime  infamous 
(United  States  y.  Block,  4  Saw.  211;  Fed.  Cas.  No. 
14609);  but  offenses  which  are  merely  misdemeanors 
are  not  within  the  term  "infamous."  (United  States 
V.  J]bert,  1  Cent.  L.  J.  205;  Fed.  Cas.  No.  15019.)  This 
section  does  not  preclude  the  prosecution  by  informa- 
tion of  such  other  offenses  as  may  be  so  prosecuted 
consistently  with  the  constitution  and  laws  of  the 
United  States.  (Ex  parte  WUson,  114  U.  S.  417; 
United  States  v.  Petit,  114  U.  S.  429.)  In  a  prosecu- 
tion in  the  Federal  courts  under  the  United  States 
election  laws,  where  the  offense  charged  is  on  the 
border-line  of  Federal  jurisdiction,  it  is  the  impera- 
tive duty  of  the  court  to  require  a  clear  and  distinct 
averment  of  every  fact  essential  to  give  the  court 
jurisdiction.  (United  States  v.  MoiTissey,  32  Fed. 
Rep.  147.)  An  indictment  is  not  required  before  a 
Chinese  person  may  be  deported  (In  re  Ng  Loy  Hoe, 
53  Fed.  Rep.  914). 

§  556.  Form  of  indictment  for  perjury. — In 
every  presentment  or  indictment  prosecuted 
agaicst  any  person  for  perjury,  it  shall  be  suffi- 
cient to  set  forth  the  substance  of  the  offense 
charged  upon  the  defendant,  and  by  what  court, 
and  before  whom,  the  oath  was  taken,  averring 
such  court  or  person  to  have  competent  authority 
to  administer  the  same,  togetlior  with  the  proper 
averment  to  falsify  the  matter  wlierein  the  perjury 
is  assigned,  without  setting  forth  the  bill,  answer, 
information,  indictment,  declaration,  or  any  part 
of  any  record  or  proceeding,  either  in  law  or 
equity,  or  any  affidavit,  deposition,  or  certificate, 


1295  CRIMINAL  PROCEDURE.  g§  557-558 

other  than  as  hereinbefore  stated,  and  without  set- 
ting forth  the  commission  or  authority  of  the  court 
or  person  before  whom  the  perjury  was  committed. 
{Rev.  Stats,  sec.  5396.) 

§  557.  Persons  convicted  of  perjury  incompe- 
tent witnesses. — Every  person  who,  having  taken 
an  oath  before  a  competent  tribunal,  officer,  or 
person,  in  any  case  in  which  a  law  of  the  United 
States  authorizes  an  oath  to  be  administered,  that 
he  will  testify,  declare,  depose,  or  certify  truly,  or 
that  any  written  testimony,  declaration,  deposi- 
tion, or  certificate  by  him  subscribed  is  true,  will- 
fully and  contrary  to  such  oath  states  and  sub- 
scribes any  material  matter  which  he  does  not  be- 
lieve to  be  true,  is  guilty  of  perjury,  and  shall  be 
punished  by  a  fine  of  not  more  than  two  thousand 
dollars,  and  by  imprisonment,  at  hard  labor,  not 
more  than  five  years;  and  shall,  moreover,  there- 
after be  incapable  of  giving  testimony  in  any  court 
of  the  United  States  ujitil  such  time  as  the  judg- 
ment against  him  is  reversed.  (Rev.  Stats,  sec. 
5392.) 

§  558.  Indictment  for  subornation  of. — ^In  ev- 
ery presentment  or  indictment  for  subornation  of 
perjury,  it  shall  be  sufficient  to  set  forth  the  sub- 
stance of  the  offense  charged  upon  the  defendant, 
without  setting  forth  the  bill,  answer,  informa- 
tion, indictment,  declaration,  or  any  part  of  any 
record  or  proceeding,  either  in  law  or  equity,  or 
any  affidavit,  deposition,  or  certificate,  and  without 
setting  forth  the  commission  or  authority  of  the 


§§  559-560  CRIMINAL  PROCEOUBE.  1296 

court  or  person  before  whom  the  perjury  was  com- 
mitted, or  was  agreed  or  promised  to  be  commitud. 
(Eev.  Stats,  sec.  5397.) 

§  559.     Perjury    before     a    court-martial,     in 

prosecutions  for  perjury  committed  on  examina- 
tion before  a  naval  general  court-martial,  or  for 
the  subornation  thereof,  it  shall  be  sufficient  to  set 
forth  the  offense  charged  on  the  defendant,  with- 
out setting  forth, the  authority  by  which  the  court 
was  held,  or  the  particular  matters  brought  before, 
or  intended  to  be  brought  before,  said  court. 
(Eev.  Stats,  sec.  1023.) 

§  560.     Charges   joined   in   one   indictment. — 

When  there  are  several  charges  against  any  person 
for  the  same  act  or  transaction,  or  for  two  or  more 
acts  or  transactions  connected  together,  or  for  two 
or  more  acts  or  transactions  of  the  same  class  of 
crimes  or  offenses,  which  may  be  properly  joined, 
instead  of  having  several  indictments,  the  whole 
may  be  joined  in  one  indictment  in  separate 
counts;  and  if  two  or  more  indictments  are  found 
in  such  cases,  the  court  may  order  them  to  be  con- 
solidated.    (Eev.  Stats,  sec.  1024.) 

Joinder  of  charges.— An  indictment  may  contain 
#  several  counts  for  offenses  of  the  same  class.  (United 
States  V.  Bickfoid,  4  Blatchf.  337:  Fed.  Cas.  No. 
14591;  Gardes  v.  United  States,  U.  S.  App.,  87 
Fed.  Rep.  172;  Tngraham  v.  United  States.  15.o  U.  S. 
434.)  And  several  offenses  arising  out  of  tlie  same 
transaction  may  be  cliargod  in  one  indictment 
(United  States  v.  .Tacoby,  12  Blatclif.  491;  Fed.  Cas. 
No.   15102),   if  the  crimes  are  merely   misdemeanors 


1297  CEIMINAL  PROCEDURE.  §  560 

(tJnited  States  v.  Porter,  2  Cranch  G.  C.  60;  Fed.  Gas. 
No.    16072;  United    States    v.    Dsvlin,  6    Blatchf.  71; 
Fed.    Gas.    No.    14953):  but    the    same    count  cannot 
charge  a  capital  offence  and  another  olleuse  which  is 
a  misdemeanor.     (United  States  v.  Sharp,  Peters  G.  C. 
131;  Fed,  Gas.  No.  16265.)    Different  counts  may  be 
joined  in  the  same  indictment  if  the  judgment  is  the 
same  for  each  offense  (United  States  v.  Goddard,  4 
Granch  G.  G.  444;  Fed.  Gas.  No.  1.5220;  United  States 
r.  Burns,  5  McLean,  23;  Fed.  Gas.  No.  14091;  United 
States  V.  Peterson,  1  Wood.  &  M.  305;  Fed.  Gas.  No. 
1G037;  United  States  v.  Stetson.  3  Wood.  &  M.  164; 
Fed.  Gas.  No.  16390);  and  it  may  allege  them  to  have 
been  committed  at  different  times  and  places.  (United 
States  V.  O'CaUahan,  6  McLean,  596;  Fed.  Gas.   No. 
15910.)    The  same  offense  may  be  charged  in  different 
ways  in  the  same  indictment  in  order  to  meet  the 
facts  of  the  case.     (United  States  v.  Pirates,  5  Wheat. 
184;  United  States  v.  Dickinson,  2  McLean,  325;  Fed. 
Gas.  No.  14958.)     So  a  count  for  an  assault  and  bat- 
tery and  a  count  for  riot  (United  States  v.  McFarland, 
1  Granch  G.  G.  163;  Fed.  Gas.  No.  15075);  or  a  count 
for  making   false   coin   with   counts   for  aiding  and 
procuring  false  coins  to  be  made  (United  States  v. 
Burns.    5    McLean,  23;  Fed.  Gas.  No.  14691);  or    for 
counterfeiting  coins  at  different  times  and  on  different 
occasions   (United   States  v.   O'Gallahan,   6  McLean, 
596;  Fed.  Gas.  No.  15910);  or  fox  a  revolt  and  excit- 
ing a  revolt  (United  States  v.  Peterson,  1  Wood.  &  M. 
305;  Fed.  Gas.  No.  16037):  or  for  stealing  letters  re- 
ceived at  the  office  from  various  points  (United  States 
V.  Brent,  17  Int.  Rev.  Rec.  54;  Fed.  Gas.  No.  14640); 
but  a  count  for  conspiracy  cannot  be  joined  with  a 
count  for    murder  in    the  same    indictment    (United 
States  V.  Scott,  4  Biss.  29;  Fed.  Gas.  No.  16241);  nor 
counts  for  knowingly  transmitting  false  paper  with 
counts  for  subornation  of  perjury.     (United  States  v. 
Fed.  Peoc— 109. 


§  560  CRIMINAL  PROCEDURE.  1298 

Bickford,  4  Blatchf.  337;  Fed.  Gas.  No.  14591.)  The 
offenses  of  bigamy  and  adultery  may  be  joined  in  one 
indictment,  both  at  common  law  and  under  this  sec- 
tion. (United  States  v.  West  (Utah),  27  Pac.  Rep. 
84.)  Where  two  or  more  indictments  found  against 
a  person  for  the  same  act  or  for  two  or  more  acts 
connected  together  the  court  may  order  them  to  be 
consolidated  (Logan  v.  United  States,  144  U.  S.  263); 
and  they  may  be  ordered  consolidated  though  two 
persons  are  jointly  charged  in  each.  (Turner  v.  United 
States,  30  U.  S.  A.pp.  90;  66  Fed.  Rep.  280.)  Where 
an  indictment  contains  several  counts  the  court  may, 
In  the  exercise  of  judicial  discretion,  require  the  gov- 
ernment to  elect  certain  counts  upon  which  it  will 
ask  conviction.  (Gardes  v.  United  States,  U.  S.  App., 
87  Fed.  Rep.  172.) 

Practice.— Several  persons  cannot  be  charged  jointly 
with  an  offense  which  is  in  its  nature  several. 
(United  States  v.  Kazinski.  2  Sprague,  7;  Fed.  Cas. 
No.  15508.)  The  provisions  of  this  section  are  obli- 
gatory, and  all  offenses  and  offenders  that  might 
have  been  joined  previously  must  be  joined  now. 
(United  States  v.  Kazinski,  2  Sprague,  7;  Fed.  Cas. 
No.  15508.)  Where  several  offenses  are  charged  and 
a  general  verdict  is  entered,  judgment  can  only  be 
entered  for  a  single  offense  (United  States  v.  Maguire, 
3  Cent.  L.  J.  273;  Fed.  Cas.  No.  15708);  but  if  the 
prisoner  Is  found  guilty  on  several  counts,  he  may  be 
sentenced  under  one  count,  and  the  sentence  on  the 
other  counts  be  suspended  until  the  tirst  sentence  has 
been  executed  (United  States  v.  Bla>sdell,  3  Ben. 
132;  Fed.  Cas.  No.  14(M^J8);  if  sentenced  under  a  cumu- 
lative judgment,  it  will  be  deemed  valid  in  a  collateral 
action.  (Ex  parte  Peters,  4  Dill.  1G9;  Fed.  Cas.  No. 
11027.)  If  defendant  has  benditCvl  bj-  the  joinder  of 
offenses,  his  acquittal  of  some  of  the  charges  affords 


1299  CRIMINAL  PROCEDURE.  §  561 

no  grounds  for  a  new  trial.     (United  States  v.  Brent, 
17  Int.  Rev.  Rec.  54;  Fed.  Cas.  No,  14640.) 

§  561.  Indictments,  defect  of  form. — No  in- 
dictment found  and  presented  by  a  grand  jury  in 
any  district  or  circuit  or  other  court  of  the  United 
States  shall  be  deemed  insufficient,  nor  shall  the 
trial,  judgment,  or  other  proceeding  thereon  be 
affected  by  reason  of  any  defect  or  imperfection 
in  matter  of  form  only,  which  shall  not  tend  to 
the  prejudice  of  the  defendant.  (Eev.  Stats,  sec. 
1025.) 

Indictment,  sufficiency  of.— The  rule  that  an  indict- 
ment following  the  words  of  the  statute  is  sufficient 
is  subject  to  the  qualification  that  all  material  facts 
and  circumstances  embraced  in  the  definition  of  the 
offense  must  be  stated.  (United  States  v.  Brazeau,  78 
Fed.  Rep.  464;  In  re  Benson,  58'Fed.  Rep.  962.)  Mere 
mistakes  in  expressing  the  substance  of  a  crime  will 
be  regarded  as  formal.  (United  States  v.  Jackson,  2 
Fed.  Rep.  502.)  So  an  irregularity  in  summoning  a 
grand  jury  is  a  mere  matter  of  form.  (United  States 
V.  Tuska,  14  Blatchf.  5;  Fed.  Cas.  No.  16r)50.)  A  fail- 
ure of  the  record  to  show  that  it  was  demanded  of  the 
accused  to  plead  to  the  indictment  or  that  he  did  so 
plead  is  not  matter  of  form  only  which  is  cured  by 
this  section,  but  is  a  matter  of  substance.  (Alex  W. 
Grain  v.  United  States,  162  U.  S.  625.)  So  a  defect  in 
an  indictment  is  cured  if  a  criminal  case  is  remitted 
from  the  district  court  to  the  circuit  court  for  trial 
(United  States  v.  McKee,  4  Dill.  1;  Fed.  Cas.  No. 
15687),  although  there  is  an  imperfect  and  informal 
averment  of  an  essential  fact  (United  States  v.  Noelke, 
1  Fed.  Rep.  426;  17  Blatchf.  554);  but  an  omission  to 
state  anything  whicti  is  a  part  of  the  description  of  the 
crime  will  render  an  indictment  defective.    (United 


§  561  CRIMINAL  PROCEDURE.  1300 

States  V.  Conant,  9  Cent.  L.  J.  129;  Fed.  Cas.  No. 
14844.)     So  if  an  indictment  sets  forth  a  paper  by  a 
description,  instead  of  g'iving  it  in  haec  verba,  it  is  bad 
on  motion  in  arrest  of  judgment.     (United  States  v. 
Noellje,  1  Fed.  Rep.  426;  17  Blatcbf.  554.)    This  section 
governs  on  an  application  for  a  new  trial  in  a  Federal 
court,  although  a  different  rule  obtains  in  the  State 
courts.     (United  States  v.  Molloy,  31  Fed.  Rep.  19.) 
And  a  new  trial  cannot  be  granted  for  such  defects  of 
form  although  the  record  fails  to  show  an  arraignment 
and  plea  before  the  trial.     (United  States  v.  Molloy,  31 
Fed.  Rep.  19.)     The  section  was  intended  to  declare 
that  no  mere  irregularity  or  defect  in  the  form  of  pro- 
ceedings which  did  not  tend  to  the  prejudice  of  the 
defendant  should  be  ground  for  a  new  trial,  although 
a    different    rule    obtains  in    State    courts.     (United 
States  V.  Molloy,  31  Fed.  Rep.  19.)     The  purpose  of 
the  provision  is,  that  where  a  real  question  of  a  diffi- 
cult point  of  law  arising  in  the  case  is  such  that  the 
two  judges  sitting  on  the  hearing  differ  in  opinion  in 
regard  thereto,   they  may  certify  it  to  the  supreme 
court  for  an  answer.     (United  States  v,  Perrin,  131 
U.  S.  55.)     One  convicted  in  a  State  court  cannot  com- 
plain in  a  Federal  court  that  the  conviction  by  which 
he  has  been  deprived  of  his  liberty  was  not  founded 
upon  a  good  indictment.     (In  re  Krug,  79  Fed.  Rep. 
309.)     Surplusage  in  an  iudictmont  cannot  be  reached 
by  demurrer  of  any  character.     (United  States  v.  Pat- 
terson, 59  Fed.  Rep.  2.S0.)     In  an  indictment  for  a  stat- 
utory offense  it  is  only  necessaiy  to  negative  an  ex- 
ception to  the  statute  when  that  exception  is  such 
as  to  render  the  negative  of  it  an  essential  part  of 
the  definition  of  the  offense.    (Shelp  v.  United  Slates, 
81  Fed.  Rep.  694.)     Sufficiency  of  an  indictment  for 
obstructing  justice.     (PettilK>ne  v.  United  States,  148 
U.  S.  197.)     In  an    Indictment    for    a  violation  of    a 
Federal  statute  It  should  not  be  left  In  doubt  or  to 


1301  CRIMINAL  PROCEDURE.  §§  562-564 

mere  inference  from  the  words  of  the  indictment 
whether  the  offense  charged  is  one  within  Federal 
cognizance.  (Blitz  v.  United  States,  153  U.  S.  308.) 
The  existence  of  a  technical  defect  in  an  information 
or  indictment  does  not  malie  it  no  information  or  in- 
dictment at  all.  (In  re  Rowe,  40  U.  S.  App.  51G;  77 
Fed.  Rep.  161.) 

§  562.  Judgment  on  demurrer  to  an  indict- 
ment.— In  every  case  in  any  court  of  the  United 
States,  where  a  demurrer  is  interposed  to  an  in- 
dictment, or  to  any  count  or  cotints  thereof,  or  to 
any  information,  and  the  demurrer  is  overruled, 
the  judgment  shall  be  respondeat  ouster;  and 
thereupon  a  trial  may  be  ordered  at  the  same  term, 
or  a  continuance  may  be  ordered,  as  justice  may 
require.     (Kev.  Stats,  sec.  1026.) 

§  563.  Several  indictments  against  the  same 
person,  one  writ  sufficient. — When  two  or  more 
charges  are  made,  or  two  or  more  indictments  are 
found,  against  any  person,  only  one  writ  or  war- 
rant shall  be  necessary  to  commit  him  for  trial; 
and  it  shall  be  sufficient  to  state  in  the  writ  the 
name  or  general  character  of  the  offenses,  or  to 
refer  to  them  only  in  very  general  terms.  (Rev. 
Stats,  sec.  1027.) 

§  564.  Copy  of  writ  to  be  jailer's  authority. — 
Whenever  a  prisoner  is  committed  to  a  sheriff  or 
jailer  by  virtue  of  a  writ,  warrant,  or  mittimus,  a 
copy  thereof  shall  be  delivered  to  such  sheriff  or 
jailer,  as  his  authority  to  hold  the  prisoner,  and  the 
original  writ,  warrant,  or    mittimus  shall  be  re- 


§§  565-567  CKIMINAL  PROCEDURE.  1302 

turned  to  the  proper  court  or  officer,  with  the  ofR- 
cer's  return  thereon.     (Rev.  Stats,  sec.  1028.) 

Note.— The  above  section  does  not  render  a  pris- 
oner's detention  unlawful  because  of  a  defect  in  a 
copy  of  the  writ,  warrant,  or  mittimus.  (Howard  v. 
United  States,  43  U.  S.  App.  678;  75  Fed.  Rep.  98G.) 

§  565.  Writ  for  removal  of  a  prisoner  from 
one  district  to  another. — Only  one  writ  or  warrant 
is  necessary  to  reijiove  a  prisoner  from  one  district 
to  another.  One  copy  thereof  may  be  delivered  to 
the  sheriff  or  jailer  from  whose  custody  the  pris- 
oner is  taken,  and  another  to  the  sheriff  or  jailer  to 
whose  custody  he  is  committed,  and  the  original 
writ,  with  the  marshal's  return  thereon,  shall  be 
returned  to  the  clerk  of  the  district  to  which  he  is 
removed.     (Rev.  Stats,  sec.  1029.) 

§  566.  No  writ  necessary  to  bring  into  court 
a  person  in  custody. — No  writ  is  necessary  to  bring 
into  court  any  prisoner  or  person  in  cu.stocly,  or  for 
remanding  him  from  the  court  into  custody,  but 
the  same  shall  be  done  on  the  order  of  the  court 
or  district  attorney,  for  which  no  fees  shall  be 
charged  by  the  clerk  or  marshal.  (Rev.  Stats,  sec. 
1030.) 

Note.— The  above  section  applies  only  to  the  case 
of  prisoners  confined  at  the  place  where  the  court  is 
in  session  and  not  to  those  in  custody  at  a  place  re- 
mote therefrom.  (United  States  v.  Donahower,  56 
U.  S.  App.  4G7;  85  Fed.  Rep.  547.) 

§  567.  Peremptory  challenges. — If,  in  the  trial 
of  a  capital  offense,  the  party  indicted  peremptor- 


1303  CBIMIXAI,  PROCEDURE.  §  568 

ily  challenges  jurors  above  the  number  allowed 
him  by  law,  such  excess  of  challenges  shall  be  dis- 
allowed by  the  court,  and  the  cause  shall  proceed 
for  trial  in  the  same  manner  as  if  they  had  not 
been  made.  [See  sec.  819.]  (Rev.  Stats,  sec. 
1031.) 

§  568.  Prisoners  standing  mute,  etc. — When 
any  person  indicted  for  any  offense  against  the 
United  States,  whether  capital  or  otherwise,  upon 
his  arraignment  stands  mute,  or  refuses  to  plead  or 
answer  thereto,  it  shall  be  the  duty  of  the  court  to 
enter  the  plea  of  not  guilty  on  his  behalf  in  the 
same  manner  as  if  he  had  pleaded  not  guilty  there- 
to. And  when  the  party  pleads  not  guilty,  or  such 
plea  is  entered  as  aforesaid,  the  cause  shall  be 
deemed  at  issue,  and  shall,  without  further  form  or 
ceremony,  be  tried  by  a  jury.  (Rev.  Stats,  sec. 
1032.) 

Standing  mute.— Where  defendant  stands  mute  the 
court  may  enter  a  plea  of  not  guilty  and  pi-oceed 
with  the  trial.  (In  re  Smith,  13  Fed.  Rep.  25.)  He 
should  have  an  opportunity  to  plead,  and  trial  with- 
out entry  of  a  plea  of  not  g-uilty  is  erroneous. 
(PaJmeir  v.  United  States,  1  Wash.  Ter.  7.)  After  he 
has  put  in  a  plea  of  not  guilty  it  includes  everything 
essential  to  put  him  on  trial  by  jury.  (United  States 
v.  Gilbert,  2  Sum.  19;  Fed.  Cas.  No.  15204.)  This 
section  applies  to  an  offense  created  by  a  statute 
enacted  since  its  adoption.  (United  States  v.  Hare, 
2  Wheel.  C.  C.  283;  Fed.  Cas.  No.  15304;  see  generally 
Ellewood  V.  Com.,  10  Met.  222;  Com.  v.  McKenna, 
125  Mass.  3197;  Com.  r.  Braley,  1  Mass.  103;  Com.  v. 
TTill,    14    Mass.  207;  Dyott    v.    Com.,  5    Whart.  67; 


§  569  CRIMIXAL   PROCEDURE.  130-t 

United  States  v.  Hare,  2  Wheel.  C.  C.  283;  Fed.  Cas. 
No.  15304;  Com.  v.  Moore,  9  Mass.  402;  United  States 
V.  Reid.  12  How.  3G1.)  Until  defendant  has  pleaded 
to  the  indictment  there  is  no  issue  to  be  submitted 
to  the  jury,  and  an  omission  to  plead  is  fatal  to  the 
judgment  in  cases  of  misdemeanor  as  well  as  in- 
famous crimes.  (Shelp  v.  United  States,  48  U.  S.  App. 
370;  81  Fed.  Rep.  604.) 

§  569.  Copy  of  indictment,  etc.,  delivered  to 
prisoner. — When  any  person  is  indicted  of  treason, 
a  copy  of  the  indictment  and  a  list  of  the  jury,  and 
of  the  witnesses  to  he  produced  on  the  trial  for 
proving  the  indictment,  stating  the  place  of  ahode 
of  each  juror  and  witness,  shall  be  delivered  to  him 
at  least  three  entire  days  before  he  is  tried  for  the 
same.  When  any  person  is  indicted  of  any  other 
capital  offense,  such  copy  of  the  indictment  and 
list  of  the  jurors  and  witnesses  shall  be  delivered 
to  him  at  least  two  entire  days  before  the  trial. 
(Eev.  Stats,   sec.  1033.) 

Treason.— The  provision  as  to  three  days  is  ex- 
pressly confined  to  treason.  (United  States  r.  Wood, 
3  Wash.  C.  G.  440;  Fed.  Cas.  No.  1G7.56.)  The  prLs- 
oner  is  entitled  to  a  reasonable  time  after  the  copy 
is  delivered  to  him  to  investigate  the  character  and 
conduct  of  the  witnesses.  (United  States  v.  Stewart, 
2  Dall.  i54."5.)  The  list  of  jurors  and  witnesses  need 
not  specify  their  occupations  (United  States  v.  In- 
surgents. 2  Dall.  335);  but  the  townships  in  which 
they  respectively  reside  should  be  specified  (United 
State  V.  Insurgents,  2  Dall.  335);  and  copies  of  both 
caption  and  indictment  should  be  delivered  to  the 
prisoner. 


1305  CKIMINAI,  PKOCEDURE.  §  569 

Other  offenses. — In  capital  offenses  other  than  trea- 
son the  copy  must  be  delivered  two  days  before  the 
cause  is  tried  by  a  jui-y,  and  not  before  the  party  is 
aiTaigned  (United  States  v.  Curtis,  4  Mason,  232,  Fed. 
Cas.  No.  141)05;  but  see  U.  S.  v.  Dow,  Taney,  34,  Fed. 
Cas.  No.  14990);  and  the  two  entire  days  must  be 
exclusive  of  tlie  day  of  its  delivery  (U.  S.  v.  Dow, 
Taney,  34,  Fed.  Cas.  No.  14990).  If  the  right  to  a  copy 
is  not  insisted  on  before  pleading  and  trial  no  objec- 
tion can  afterward  be  taken  to  the  proceedings  (Uni- 
ted States  V.  Cornell,  2  Mason,  91,  Fed.  Cas.  No. 
14S6S);  if  he  makes  no  objection  till  after  the  jury  has 
been  sworn  the  omission  is  no  ground  for  arrest  of 
judgment,  or  for  a  new  trial  (U.  S.  v.  Curtis,  4  Mason, 
232,  Fed.  Cas.  No.  14905).  If  he  acknowledges  be- 
fore arraignment  the  receipt  of  a  copy,  it  is  a  waiver 
of  his  right  if  he  has  not  received  it  (U.  S.  v.  Corn- 
well,  2  Mason,  91,  Fed.  Cas.  No.  14868).  If  the  case  is 
not  capital  the  prisoner  is  not  entitled  to  a  copy  of 
the  indictment  at  government  expense  (U.  S.  v.  Bick- 
ford,  4  Blatchf.  337,  Fed.  Cas.  No.  14591;  U.  S.  v. 
Hare,  2  Wheel.  C.  C.  2&3,  Fed.  Cas.  No.  15304);  nor 
is  he  entitled  to  a  list  of  witnesses  or  jurors  (U.  S. 
V.  Williams,  4  Cranch  C.  C.  372,  Fed.  Cas.  No.  16712; 
U.  S.  V.  Wood,  3  Wash.  C.  O.  440,  Fed.  Cas.  No. 
16756;  Shelp  v.  United  States,  81  Fed.  Rep.  694);  but 
in  all  cases  where  there  has  been  no  preliminary  ex- 
amination the  court,  in  its  discretion,  may  order  a 
list  of  witnesses  before  the  grand  juiy  to  be  furnished 
<U.  S.  V.  Southmayd,  6  Biss.  321,  Fed.  Cas.  No.  16361); 
and  a  copy  of  the  indictment  may  be  granted  ou  u..s 
request  (U.  S.  v.  Williams,  1  Cranch  C.  C.  178.  Fed. 
Cas.  No.  16709;  U.  S.  v.  Curtis,  4  Mason,  232,  Fed.  Cas. 
No.  14905).  This  section  does  not  apply  to  rebuttal 
witnesses;  they  are  not  disqualified  by  an  absence 
of  a  notice  naming  them  as  witnesses.  (Goldsby  v. 
United  States,  160  U.  S.  70.) 


§8  570-571  CEIMINAL  PEOCEDTTBE.  1306 

§  570.  Counsel  and  witnesses  for  defendant  in. 
capital  cases. — Every  person  who  is  indicted  of 
treason  or  other  capital  crime  shall  be  allowed  ta 
make  his  full  defense  by  counsel  learned  in  the 
law;  and  the  court  before  which  he  is  tried,  or  some 
judge  thereof,  shall  immediately,  upon  his  request, 
assign  to  him  such  counsel,  not  exceeding  two,  as 
he  may, desire,  and  they  shall  have  free  access  to 
him  at  all  seasonable  hours.  He  shall  be  allowed 
in  his  defense  to  'make  any  proof  that  he  can  pro- 
duce by  lawful  witnesses,  and  shall  have  the  like 
process  of  the  court  to  compel  his  witnesses  to  ap- 
pear at  his  trial  as  is  usually  granted  to  compel 
witnesses  to  appear  on  behalf  of  the  prosecution. 
(Kev.  Stats,    sec.  1034.) 

Note.— Accused  has  the  right  to  compulsory  process 
for  witnesses  even  befoi'e  iudictment.  (Burr's  Trials 
177.) 

§  571.  Verdict  of  less  offense  than  charged. — 
In  all  criminal  causes  the  defendant  may  be  found 
guilty  of  any  offense  the  commission  of  which  is 
necessarily  included  in  that  with  which  he  i& 
charged  in  the  indictment,  or  may  be  found  guilty 
of  an  attempt  to  commit  the  offense  so  charged; 
provided,  that  such  atttempt  be  itself  a  separate 
offense.     (Rev.  Stats,  sec  1035.) 

Note.— The  indictment  charging  murder  is  sutEcient 
upon  a  verdict  of  manslaughter.  (U.  S.  v.  Leonard, 
2  Fed.  Rep.  689;  18  Blatchf.  187.)  It  is  not  competent 
for  the  court  to  instruct  the  jury  peremptorily  to  find 
the  accused  guilty  of  the  offense  charged  or  of  any 
criminal  offense  less  than  that  chai'ged  (Sparf  v. 
United  States,  156  U.  S.  51). 


1307  CBIMIiSrAL  PEOCEDURE.  §§  572-573 

§  572.  Verdict  against  part  of  several  joint 
defendants. — On  an  indictment  against  several,  if 
the  jury  cannot  agree  upon  a  verdict  as  to  all,  they 
may  render  a  verdict  as  to  those  in  regard  to  whom 
they  do  agree,  on  which  a  judgment  shall  be  en- 
tered accordingly;  and  the  cause  as  to  the  other 
defendants  may  be  tried  by  another  jury.  (Kev. 
Stats,  sec.  1036.) 

Note. — A  jury  may  find  a  verdict  of  guilty  or  not 
guilty  as  to  part  of  defendants  jointly  ti'ied  in  a  crim- 
inal case  and  disagree  as  to  the  others  (Bucklin  v. 
United  States,  159  U.  S.  682).  On  an  indictment 
charging  conspiracy  the  acquittal  of  oae  is  an  acquit- 
tal of  both  (U.  S.  V.  Hamilton,  8  Chic.  L.  N.  211,  Fed. 
Cas.  No.  15288);  but  if  it  charges  a  conspiring  of  de- 
fendants with  others  unknown,  a  vei'dict  may  be 
rendered  against  one,  and  in  favor  of  the  other. 
(U.  S.  V.  Hamilton,  8  Chic.  L.  N.  211,  Fed.  Cas.  No. 
15288.) 

§  573.  Indictments  remitted  by  circuit  and 
district  courts  to  each  other. — Whenever  the  dis- 
trict attorney  deems  it  necessary,  any  circuit  court 
may,  by  order  entered  on  its  minutes,  remit  any  in- 
dictment pending  therein  to  the  next  session  of  the 
district  court  of  the  same  district,  where  the  of- 
fense charged  in  the  indictment  is  cognizable  by 
the  said  district  court.  And  in  like  manner  any 
district  court  may  remit  to  the  next  session  of  the 
circuit  court  of  the  same  district  any  indictment 
pending  in  the  said  district  court.  And  such  re- 
mission shall  carry  with  it  all  recognizances,  pro- 
cesses, and  proceedings  pending  in  the  case  in  the 
court  from  which  the  remission  is  made;  and  the 


§  574  CBIMINAL  PBOCEDURE.  1308 

court  to  which  such  remission  is  made  shall,  after 
the  order  of  remission  is  filed  therein,  act  in  the 
case  as  if  the  indictment,  and  all  other  proceedings- 
in  the  same,  had  been  originated  in  said  court. 
(Eev.  Stats,    sec.  1037.) 

Note.— The  object  of  this  sectiou  is  the  transmis- 
sion of  a  crimiuaJ  ease  \rith  all  the  proceedings  there- 
in from  one  court  to  another.  (U.  S.  v.  McKee,  4  Dill. 
1,  Fed.  Cas.  No.  156S7,)  A  ease  remitted  from  the 
circuit  to  tlie  district  court  may  be  sent  back  under 
proper  circumstances.  (U.  S.  v.  Murphy,  3  Wall. 
649.)  The  original  indictment  need  not  be  sent;  a 
certified  copy  is  sufficient  (U.  S.  v.  McKee,  4  Dill. 
1,  Fed.  Oas.  No.  15687).  A  circuit  court  cannot,  of 
its  own  motion,  on  an  application  of  defendant,  re- 
mit au  indictment.  (U.  S.  v.  Bennett,  16  Blatehf. 
338,  Fed.  Cas.  No.  14571.)  After  conviction  in  the  dis- 
trict com-t,  the  indictment  cannot  be  lawfully  remit- 
ted to  the  circuit  court  under  this  section.  (United 
States  V.  Haynes,  26  Fed.  Kep.  857.  And  see  In  re 
Haynes,  30  Fed.  Rep.  767.)  In  a  criminal  cause,  the 
circuit  com't  may  amend  its  record  after  remission  to 
the  district  court.  (Kelly  v.  United  States,  27  Fed. 
Rep.  616.)  The  circuit  court  has  jurisdiction  of  an  in- 
dictment remitted  from  the  district  court,  after  the 
defendant  had  pleaded.  (Un/ited  States  v.  Richard- 
son, Cir.  Ct.  Me.,  28  Fed.  Rep.  61.) 

§•  574.  Remission  from  district  to  circuit  court 
of  difficult  cases. — Any  district  court  may,  by  or- 
der entered  on  its  minutes,  remit  any  indictment 
pending  therein  to  the  next  session  of  the  circuit 
court,  for  the  same  district,  when,  in  the  opinion  of 
such  district  court,  difficult  and  important  ques- 
tions of  law  are  involved  in  the  case;  and  there- 
upon the  proceedings  in  such  oasp  shall  be  the  same 


1309  CKIMINAL  PROCEDURE.  §§  575-576 

in  the  circuit  court  as  if  such  indictment  had  been 
originally  found  and  presented  therein.  (Rev. 
Stats,   sec.  1038.) 

Note. — An  indictment  will  not  be  remittdd  to  the 
circuit  court  except  In  cases  of  manifest  and  grave 
importance  (U.  S.  v.  O' Sullivan,  9  N.  Y.  Leg.  Obs.  193, 
Fed.  Gas.  No.  15973);  and  when  remitted,  it  may  be 
remitted  even  after  the  term  when  it  was  presented. 
(U.  S.  V.  Mon-is,  1  Curt.  23,  Fed.  Cas.  No.  15S15.)  The 
mere  fact  that  exposition  to  a  statute  has  been  given 
by  the  district  judge  is  no  ground  for  remitting  the 
indictment.  (U.  S.  v.  O' Sullivan,  9  N.  Y.  Leg.  Obs. 
198,  Fed.  Oas.  No.  15973.) 

§  575.  All  capital  cases  remitted  from  district 
to  circuit  courts. — Every  indictment  of  a  capital 
offense  presented  to  a  district  court,  together  with 
the  recognizances  taken  therein,  shall,  by  order  en- 
tered on  its  minutes,  be  remitted  to  the  next  ses- 
sion of  the  circuit  court  for  the  same  district;  and 
on  the  filing  of  such  order  and  indictment  with 
the  clerk  of  such  circuit  court,  that  court  shall  pro- 
ceed thereon  in  the  same  manner  as  if  said  indict- 
ment had  been  originally  found  and  presented 
therein.     (Rev.  Stats,  sec.  1039.) 

§  576.  Capital  case  carried  to  the  supreme 
court. — Whenever  a  judgment  of  death  is  rendered 
in  any  court  of  the  United  States,  and  the  case  is 
carried  to  the  supreme  court  in  pursuance  of  law, 
the  court  rendering  such  judgment  shall,  by  its 
order,  postpone  the  execution  thereof  from  time  to 
time  and  from  term  to  term,  until  the  mandate  of 
the  supreme  court  in  the  case  is  received  and  en- 

Fed.  Proc— 110. 


§577  CRIMIXAL  PBOCEDURE.  1310 

tered  upon  the  records  of  such  lower  court.  In 
case  of  affirmance  by  the  supreme  court,  the  court 
rendering  the  original  judgment  shall  appoint  a 
day  for  the  execution  thereof;  and  in  case  of  re- 
versal, such  further  proceedings  shall  be  had  in 
the  lower  court  as  the  supreme  court  may  direct. 
(Eev.  Stats,   sec.  1040.) 

§  577.     Judgments  for   fines,  how   collected. — 

In  all  criminal  or  penal  causes  in  which  judgment 
or  sentence  has  been  or  shall  be  rendered,  imposing 
the  payment  of  a  fine  or  penalt}',  whether  alone  or 
with  any  other  kind  of  punishment,  the  said  judg- 
ment, so  far  as  the  fine  or  penalty  is  concerned, 
may  be  enforced  by  execution  against  the  property 
of  the  defendant  in  like  manner  as  judgments  in 
civil  cases  are  enforced;  provided,  that  where  the 
judgment  directs  that  the  defendant  shall  be  im- 
prisoned until  the  fine  or  penalty  imposed  is  paid, 
the  issue  of  execution  on  the  judgment  shall  not 
operate  to  discharge  the  defendant  from  impris- 
onment until  the  amount  of  the  judgment  is  col- 
lected or  otherwise  paid.     (Eev.  Stats,    sec.  1041.) 

Note. — If  nothing  is  said  in  the  judgment  as  to  the 
mode  of  enforcing  it,  a  fi.  fa.  or  a  capias  pro  fine  may 
be  issued;  but  if  a  fi.  fa.  is  provideil  for,  a  capias 
cannot  issue;  and  if  it  provides  that  the  party  stand 
committed  until  the  fine  is  paid  a  capias  pro  fine  may 
be  issued.  (Ex  parte  Teuscher,  23  Int.  Rev.  Rec. 
202,  Fed.  Cas.  No.  1.3846.)  A  person  sentenced  to 
pay  a  fine  may  be  committed  till  the  fine  is  paid.  (U. 
S.  V.  Robbins,  15  Int.  Rev.  Rec.  1.5.5.  Fed.  Cas.  No. 
1G171.)  It  is  within  the  discretion  of  the  court  to 
order  his  imprisonment  until  tlie  fine  is  paid.  (Ex 
parte  Jackson.  96  U.  S.  727.) 


1311  CKIMINAL  PROCEDURE.  §  578 

§  578.  Poor  convicts  sentenced  and  impris- 
oned for  fines. — When  a  poor  convict,  sentenced  by 
any  court  of  the  United  States  to  pay  a  fine,  or  fine 
and  cost,  whether  witli  or  without  imprisonment, 
has  been  confined  in  prison  thirty  days,  solely  for 
the  nonpayment  of  such  fine,  or  fine  and  cost,  he 
may  make  application  in  writing  to  any  commis- 
sioner of  the  United  States  court  in  the  district 
where  he  is  imprisoned,  setting  forth  his  inability 
to  pay  such  fine,  or  fine  and  cost,  and  after  notice 
to  the  district  attorney  of  the  United  States,  who 
may  appear,  offer  evidence,  and  be  heard,  the  com- 
missioner shall  proceed  to  hear  and  determine  the 
matter;  and  if  on  examination  it  shall  appear  to 
him  that  such  convict  is  unable  to  pay  such  fine, 
or  fine  and  cost,  and  that  he  has  not  any  property 
exceeding  twenty  dollars  in  value,  except  such  as  is 
by  law  exempt  from  being  taken  on  execution  for 
debt,  the  commissioner  shall  administer  to  him  the 
following  oath:  "I  do  solemnly  swear  that  I  have 
not  any  property,  real  or  personal,  to  the  amount 
of  twenty  dollars,  except  such  as  is  by  law  exempt 
from  being  taken  on  civil  precept  for  debt  by  the 
laws  of  [State  where  oath  is  administered];  and 
that  I  have  no  property  in  any  way  conveyed  or 
concealed,  or  in  any  way  disposed  of,  for  my  fu- 
ture use  or  benefit.  So  help  me  God."  And 
thereupon  such  convict  shall  be  discharged,  the 
commissioner  giving  to  the  jailer  or  keeper  of  the 
jail  a  certificate  setting  forth  the  facts.  [See  sees. 
847.  5296.]  (Rev.  Stats,    sec.  1042.) 

Note.— A  convict  is  not  entitled  to  rele.ise  on  a  con- 
ditional pardon.     (In  re  Rnhl,  5  Sawy.  186.  Fed.  Cas, 


§§  579-580  CRIMINAL  PROCEDURE.  1312 

No.  12124.)  This  section  implies  that  a  fine  may  be 
enforced  by  imprisonment  until  paid  (In  re  Green- 
wald,  77  Fed.  Rep.  590). 

§  579.  For  offenses  against  navigation  laws — 
When  summary  trials  may  be  had.— Whenever  a 
complaint  shall  be  made  against  any  master,  officer, 
or  seaman  of  any  vessel  belonging,  in  whole  or  in 
part,  to  any  citizen  of  the  United  States,  of  the 
commission  of  any  offense,  not  capital  or  other- 
wise infamous,  against  any  law  of  the  United 
States  made  for  the  protection  of  persons  or  prop- 
erty engaged  in  commerce  or  navigation,  it  shall 
be  the  duty  of  the  district  attorney  to  investigate 
the  same,  and  the  general  nature  thereof,  and  if, 
in  his  opinion,  the  case  is  such  as  should  be  sum- 
marily tried,  he  shall  report  the  same  to  the  dis- 
trict judge,  and  the  judge  shall  forthwith,  or  as 
soon  as  the  ordinary  business  of  the  court  will  per- 
mit, proceed  to  try  the  cause,  and  for  that  purpose 
may,  if  necessary,  hold  a  special  session  of  the 
court,  either  in  term-time  or  vacation.  (Rev.  Stats. 
sec.  4300.) 

§  580.  Complaint  and  answer. — At  the  sum- 
mary trial  of  offenses  against  the  laws  for  the  pro- 
tection of  persons  or  property  engaged  in  com- 
merce or  navigation,  it  shall  not  be  necessary  that 
the  accused  shall  have  been  previously  indicted, 
but  a  statement  of  complaint,  verified  by  oath  in 
writing,  shall  be  presented  to  the  court,  sotting  out 
the  offense  in  such  manner  as  clearly  to  apprise  the 
accused  of  the  character  of  the  offense  complained 
of,  and  to  enable  him  to  answer  the  complaint. 


1313  CKIMINAL  PROCEDUKE,  §§  581-583 

The  complaint  or  statement  shall  be  read  to  the 
accused,  who  may  plead  to  or  answer  the  same, 
or  make  a  counter-statement.  The  trial  shall 
thereupon  he  proceeded  with  in  a  summary  man- 
ner, and  the  case  shall  he  decided  by  the  court 
unless,  at  the  time  for  pleading  or  answering,  the 
accused  shall  demand  a  jury,  in  which  case  the 
trial  shall  be  upon  the  complaint  and  plea  of  not 
guilty.     (Rev.  Stats,   sec.  4301.) 

§  581.  Amendments  and  adjournments. — It 
shall  be  lawful  for  the  court  to  allow  the  district 
attorney  to  amend  his  statement  of  complaint  at 
any  stage  of  the  proceedings  before  verdict,  if,  in 
the  opinion  of  the  court,  such  amendment  will 
work  no  injustice  to  the  accused;  and  if  it  appears 
to  the  court  that  the  accused  is  unprepared  to  meet 
the  charge  as  amended,  and  that  an  adjournment 
of  the  cause  will  promote  the  ends  of  justice,  such 
adjournment  shall  be  made  until  a  further  day,  to 
be  fixed  by  the  court.     (Eev.  Stats,    sec.  4302.) 

§  582.  Challenges  to  jurors. — At  the  trial  in 
summary  cases,  if  by  jury,  the  United  States  and 
the  accused  shall  each  be  entitled  to  three  peremp- 
tory challenges.  Challenges  for  cause,  in  such 
cases,  shall  be  tried  by  the  court  without  the  aid  of 
triers.     (Eev.  Stats,   sec.  4303.) 

§  583.  Limit  of  sentences. — It  shall  not  be  law- 
ful for  the  court  to  sentence  any  person  convicted 
in  such  trial  to  any  greater  punishment  than  im- 
prisonment in  jail  for  one  year,  or  to  a  fine  exceed- 


§§  584585  CRIMINAL   PROCEDURE.  1314 

ing  five  hundred  dollars^  or  both,  iii  its  discrc  !,ion, 
in  those  eases  where  the  laws  of  the  United  States 
authorize  such  imprisonment  and  fine.  (Rev. 
Stats,    sec.  4304.) 

§  584.  Penalties,  etc.,  under  navigation  laws, 
how  prosecuted,  etc. — All  the  penalties  and  for- 
feitures which  may  be  incurred  for  offenses  against 
this  title  may  be  sued  for,  prosecuted,  and  recov- 
ered in  such  courts  and  be  disposed  of  in  such  man- 
ner, as  any  penalties  and  forfeitures  which  may  be 
incurred  for  offenses  against  the  laws  relating  to 
the  collection  of  duties,  except  when  otherwise  ex- 
pressly prescribed.     (Rev.  Stats,  sec.  4305.) 

§  585.  Fugitives  from  the  justice  of  a  foreign 
country. — W  lien  ever  there  is  a  treaty  or  conven- 
tion for  extradition  between  the  government  of  the 
United  States  and  any  foreign  government,  any 
justice  of  the  supreme  court,  circuit  judge,  district 
judge,  commissioner,  authorized  so  to  do  by  any 
of  the  courts  of  the  United  States,  or  judge  of  a 
court  of  record  of  general  jurisdiction  of  any  State, 
may,  upon  complaint  made  under  oath,  charging 
any  person  found  within  the  limits  of  any  State, 
district,  or  Territory,  with  having  committed  with- 
in the  jurisdiction  of  any  such  foreign  government 
any  of  the  crimes  provided  for  by  such  treaty  or 
convention,  issue  his  warrant  for  the  apprehension 
of  the  person  so  charged,  that  he  may  be  brought' 
before  such  justice,  judge,  or  commissioner,  to  the 
end  that  the  evidence  of  criminality  may  be  heard 
and  considered.     If,  on  such  hearing,  he  deems  the 


1315  CKIMINAL  PEOCEDURE.  §  585 

evidence  sufficient  to  sustain  the  charges  under 
the  provisions  of  the  proper  treaty  or  convention, 
he  shall  certify  the  same,  together  with  a  copy  of 
all  the  testimony  taken  before  him,  to  the  secre- 
tary of  state,  that  a  warrant  may  issue  upon  the 
requisition  of  the  proper  authorities  of  such  for- 
eign government,  for  the  surrender  of  such  person 
according  to  the  stipulations  of  the  treaty  or  con- 
vention; and  he  shall  issue  his  warrant  for  the  com- 
mitment of  the  person  so  charged  to  the  proper 
jail,  there  to  remain  until  such  surrender  shall  be 
made.     (Eev.  Stats,    sec.  5270.) 

International  extradition. — Extradition  is  a  right 
of  foreig^n  governments  only,  not  of  individuals.  (In 
re  Extradition  of  Fen-elle,  28  Fed.  Rep.  878.)  A  for- 
eign government  has  no  right  by  the  law  of  nations 
to  demand  of  the  government  of  the  United  States  a 
surrender  of  a  citizen  or  subject  of  such  foreign  gov- 
ernment, who  has  committed  a  crime  in  hiis  own 
country,  and  is  afterward  fonnd  within  the  limits 
of  the  United  States.  It  is  a  right  which  has  no  ex- 
istence, and  can  only  be  secured  by  a  treaty  stipula- 
tion. As  between  the  United  States  and  foreign 
governments  the  surrender  of  fugitives  from  justice 
depends  upon  treaties.  (Dos  Santos'  Case,  2  Brock. 
493,  Fed.  Cas.  No.  4016;  United  States  v.  Davis,  2 
Sumn.  482,  Fed.  Cas.  No.  14932;  In  re  Metzger.  5 
How.  176;  6  Op.  Att'y-Gen.  85;  1  Op.  Att'y-Gen.  68. 
510;  3  Op.  Att'y-Gen.  661;  2  Op.  Att'y-Gen.  359;  7 
Op.  Att'y-Gen.  536;  1  Kent's  Com.  39  n.;  Wheat.  Int. 
L.  171.)  The  treaty  of  1842  is  not  only  a  contract 
between  the  government  of  Great  Britain  and  the 
United  States,  but  it  is  also  the  law  of  this  land; 
and  a  person  may,  if  occasion  require,  involve  the 
treaty    in    any   judicial    proceeding   as    a    protection 


§585  CKIMIXAL  PKOCEDUr.E.  1316 

against  detention  or  trial.  (Ex  parte  Hibbs,  26  Fed. 
Rep.  421.)  Tlie  treaty  Mith  France  of  1843.  providing 
for  tlie  sun-ender  of  fugitives  from  justice,  cannot 
be  executed  by  the  President  of  tlie  United  States 
without  an  act  of  Congi-ess.  No  person  can  be  sur- 
rendered under  that  ti-eaty  who  is  merely  charged 
with  crime  before  a  committing  magistrate.  He 
must,  under  our  law,  be  indicted,  or  under  the  French 
law,  be  mis  en  accusation  by  the  cliambre  des  mises 
en  accusal. on.  (See  In  re  Metzger,  1  Edm.  Sel.  Cas. 
422.)  In  the  absence  of  a  treaty  stipulation,  it  is 
optional  to  surrender  or  not  citizens  of  other  coun- 
ti'ies,  to  answer  for  offenses  committed  at  home, 
though  in  case  of  mere  political  offenses  it  is  seldom 
done.  (In  re  Sheazle,  1  Wood.  &  M.  68,  Fed.  Cas.  No. 
12734;  Holmes  v.  Jeunison,  14  Pet.  540,  549;  United 
States  V.  Davis,  2  Sumn.  482.  486,  Fed.  Gas.  No.  14932; 
Mure  V.  Kaye,  4  Taunt.  34;  Commonwealth  v.  Deacon, 
10  Serg.  &  R.  185;  2  Wheel.  Cr.  Cas.  15;  1  Am.  St. 
Pap.  115;  New  York  v.  MUn,  11  Pet.  102;  United 
States  V.  Nash,  Bee  Adm.  266,  Fed.  Oas.  No.  16175.) 
The  United  States  government  has  never  recognized 
the  right,  unless  under  treaty  stipulations.  (In  re 
Fetter,  23  N.  J.  L.  313;  57  Am.  Dec.  384;  Com.  v. 
Deacon.  10  Serg.  &  R.  135;  Story's  Couf.  L.,  sees. 
626.  1808;  Jefferson's  Letter  to  W>shington,  7th  Nov. 
1791 ;  Jefferson's  Letter  to  Genet.  1793,  1  Am.  St.  Pap. 
175:  Story's  Letter  to  Gov.  Everett,  June  6,  1835, 
cited  in  2  Life  of  Story,  179;  1  Kent's  Com.  37,  note.) 
Extradition  is  to  be  effectuated  through  the  agency 
of  the  tribunals  of  justice,  whose  province  it  is  to 
determine  the  existence  of  reasonable  cause  for  the 
charge  of  crime,  and  if  there  be  sufficiemt  evidence 
to  justify  putting  the  accused  upon  his  trial.  (In  re 
Metzger,  1  Edm.  Sel.  Cas.  402.)  Under  the  treaty 
with  Great  Britain  of  1842  a  preliminary  mandate 
from  the  executive  is  not  necessary.    (In  re  Herrea, 


1317  CRIMINAL  PROCEDURE.  §585 

33  Fed.  Eep.  165.)  One  accused  of  poisoning,  result- 
ing in  death  in  Canada,  may  be  extradited,  though 
it  appears  that  the  poison,  if  administered  at  all,  was 
given  in  this  country  (Sternaman  v.  Peck,  83  Fed. 
Eep.  B90). 

Right  exists  only  under  treaty  stipulations. — Ex- 
cept under  the  provisions  of  treaties,  the  delivery  by 
one  country  to  another  of  fugitives  from  justice  is 
a  matter  of  comity,  not  of  obligation.  (Uniited  States 
V.  Rauscher,  119  U.  S.  407.)  Extradition  from  a  for- 
eign countiy  although  for  a  crime  committed  against 
the  law  of  a  State,  must  be  negotiated  through  the 
P^'ederal  government.  (United  Sitates  v.  Rauscher, 
119  U.  S.  407.)  Extradition  treaties  of  the  United 
States  do  not  guarantee  a  fugitive  an  asylum  in  any 
foreign  country.  So  far  as  they  regulate  the  right  of 
asylum  at  all,  they  limit  it.  (Ker  v.  Illinois,  119  U.  S. 
436.) 

Conduct  of  proceedings.— The  rules  prescribed  for 
the  conduct  of  proceedings  under  extradition  treaties 
are:  1.  Demand  for  surrendei*  and  mandate  of  the 
President;  2.  Previous  designation  of  the  commis- 
sioner before  whom  the  warrant  of  arrest  is  return- 
able; 3.  Certificates  to  documentary  evidence;  4.  Rec- 
ord by  the  commissioner  of  the  proceedings  before 
him;  5.  Verified  transactions  of  documents  in  foreign 
languages;  6.  Contents  of  complaint.  (Re  Henrich, 
5  Blatchf.  414,  Fed.  Cas.  No.  6369.)  Whether  a  party 
making  complaint  is  duly  authorized  to  appear  in  be- 
half of  the  foreign  government  is  a  matter  to  be  in- 
quired into  before  the  commissioner.  (Re  Kelly,  26 
Fed.  Rep.  852.)  On  motion  of  a  sovereignty  making 
the  demand,  a  commissioner  may,  in  his  discretion, 
adjourn  the  hearing  of  the  exti-adition  proceedings. 
(Re  Ludwig,  32  Fed.  Rep.  774.) 


§585  CRIMINAL  PROCEDURE.  1318 

Bequisition  for  process  and  surrender.— Requisi- 
tions sliould  issue  from  the  supreme  political  autlior- 
ity  of  the  demanding  State,  and  be  addressed  to  tlie 
secretaiy  of  State.  (8  Op.  Att'y-Gen.  240;  Op.  Att'y- 
Gen.  201;  7  Ap.  Att'y-Gen.  6;  8  Op.  Att"y-Gen.  420; 
Re  Henrich,  5  Blatclif.  414,  Fed.  Gas.  No.  6369.)  The 
requisition  need  not  be  founded  on  an  Indictment 
or  warrant  issued  on  an  indictment.  (Re  British 
Prisoners,  1  Wood.  &  M.  66,  Fed.  Oas.  No.  12734; 
Be  Thomas,  12  Blatchf.  370,  Fed.  Cas.  No.  13887.) 
Proceedings  for  e.^tradition  need  not  necessarily  be 
initiated  by  a  requisition  from  a  foreign  government 
(In  re  Adutt,  55  Fed.  Rep.  376).  To  authorize  arrest 
and  removal  from  the  State  or  country,  it  must  ap- 
pear on  the  application  that  the  crime  was  committed 
in  the  State  or  country  from  which  the  requisiitioii 
proceeds.  (Ex  parte  Smith,  3  McLean,  121,  Fed.  Gas. 
No.  12968;  6  L.  R.  57;  8  Op.  Att'y-Gen.  215,  306;  1 
Op.  Att'y-Gen.  S3;  Re  Vogt,  14  Op.  Atfy-Gen.  251.) 
A  requisition  for  a  return  of  a  fugitive  from  justice 
cannot  be  denied  when  the  indictment  or  affidavit, 
of  which  a  copy  is  attached  to  the  requisition,  would 
be  held  sufficient  by  the  courts  of  the  State  where 
the  offense  was  committed  (Webb  v.  York,  49  U.  S. 
App.  163;  79  Fed.  Rep.  616). 

Complaint  under  oath  requisite.— A  complaint 
made  under  oatii  is  necessary  to  autliorize  a  warrant 
to  compel  a  preliminary  examination  of  a  person  de- 
manded by  a  foreign  government  as  a  criminal.  (Ex 
parte  McCabe,  46  Fed.  Itep.  363.)  It  must  be  a  com- 
plaint by  some  one  authorized  to  represent  the  ex- 
(Kjutive  department  of  the  foreign  treaty  power.  (Re 
Extradition  of  Ferrelle,  24  Blatchf.  155;  28  Fed.  Rep. 
878.)  It  is  not  necessary  that  the  attorney-general, 
or  any  member  of  the  executive  department  of  a 
foreign  nation,  should  him.self  make  the  complaint 


1319  CRIMINAL  PROCEDURE.  §  585 

on  which  the  accused  is  arrested.  Any  person  whom 
he  authorizes  or  whom  he  delegates  to  act  for  that 
government  is  a  proper  person  to  appear  and  file  a 
complaint.  (Re  Kelly,  26  Fed.  Rep.  852.)  If  the 
complaint  be  made  by  a  private  individual,  his  au- 
thority to  act  in  behalf  of  the  foreign  executive 
should  be  made  to  appear  before  the  proceedings  be- 
fore the  commissioner  are  closed,  or  the  proceed- 
ing should  be  dismissed.  (Re  Extradition  of  Fer- 
relle,  24  Blatchf.  155;  28  Fed.  Rep.  878.)  In  a 
complaint  for  a  warrant  of  extradition,  the  crime 
must  be  clearly  set  forth  and  the  facts  constituting 
it  must  be  stated;  but  the  averments  need  not  be 
upon  personal  iinowledge.  (Re  Farez,  7  Blatchf.  34. 
;545,  491.  Fed.  Oas.  Nos.  4644,  4645,  4046;  2  Abb.  U. 
S.  346:  40  How.  Pr.  107;  Ex  parte  Van  Hoven,  4 
Dill.  411,  Fed.  Cas.  No.  16858;  Ex  parte  Sternaman, 
77  Fed.  Rep.  595.)  If  it  appear  in  the  proceedings 
that  they  are  initiated  and  carried  on  by  a  foreign 
govei'nment,  it  is  sufficient,  although  the  complaint 
does  not  show  the  fact.  (Re  Herres,  33  Fed.  Rep. 
165;  reversing  32  Fed.  Rep.  583.) 

Warrant  of  arrest.— The  fact  that  the  commissioner 
who  issued  the  warrant  is  authorized  so  to  do  is  jur- 
isdictional and  must  appear  upon  the  face  of  the 
warrant.  (Re  Kelly,  25  Fed.  Rep.  270.)  Proceedings 
for  extradition  may  be  commenced  by  the  arrest  of 
the  person  charged,  under  a  warrant  issued  by  a 
United  States  commissioner  on  complaint  of  a  foreign 
consul  without  a  requisition.  (In  re  Adutt,  55  Fed. 
Rep.  376.)  Under  the  treaty  with  Great  Britain,  no 
authority  is  required  from  the  executive  department 
of  the  United  States  to  enable  a  judge,  magistrate,  or 
commissioner  to  issue  a  warrant  for  the  arrest  of  an 
alleged  fugitive  from  justice.  (Ex  parte  Ross,  2 
Bond,  2.52;  Fed.  Cas.  No.  12069.)  It  is  not  necessary, 
preliminary  to  an  investigation  here,  that  a  warrant 


S  585  CRIMINAL  PROCEDURE.  13'_'0 

of  aiTest  should  hare  been  issued  in  the  foreign  jur- 
isdiction. (Re  Thoiua.s,  12  Blatchf.  370;  Fed.  Cas.  No. 
13887.)  Where  a  warrant  of  extradition  recited  that 
the  party  was  accused  of  the  crime  of  forgery,  with- 
out saying  what  forgery,  resort  might  be  had  to  the 
proceedings  before  the  committing  magistrate,  and 
his  report,  on  which  the  warrant  was  issued,  to  ascer- 
tain what  and  how  many  forgeries  the  extradition 
was  intended  to  apply  to  or  include.  (Ex  parte  Hibbs, 
26  Fed.  Rep.  421.)  The  term  "forgery"  in  the  extra- 
dition act  means  that  which  by  universal  acceptation 
it  is  understood  to  mean.  (Re  Tully,  22  Blatchf. 
220;  20  Fed.  Rep.  812.)  The  district  judge  may 
issue  a  second  warrant,  where  the  first  was  of  ques- 
tionable regularity.  (Re  Fergus,  30  Fed.  Rep.  607.) 
The  warrant  may  run  thi-oughout  the  United  Slates, 
and  may  be  executed  by  any  marshal  or  deputy 
marshal.  (Re  Fergus,  30  Fed.  Rep.  607.)  Where 
a  district  judge  at  chambei's  decided  that  there 
was  sufficient  cause  for  surrender  of  a  fugitive 
claimed  by  the  P^'rench  government  under  a  treaty, 
the  supreme  court  had  no  jurisdiction  to  review  that 
decision.  (Re  Metzger,  5  How.  176.)  The  governor's 
warrant  for  an  arrest  as  a  fugitive  from  justice,  on 
a  requisition,  can  be  issued  only  on  an  affidavit  ac- 
companying the  requisition  which  positively  and  di- 
rectly charges  the  commission  of  a  specific  offense. 
(Ex  parte  Spears,  88  Cal.  640.)  A  warrant,  when 
issued  by  a  county  judge  under  section  5270,  although 
he  styles  himself  also  an  extradition  agent,  is  not  In- 
valid because  it  does  not  recite  the  source  of  his  au- 
thority to  issue  it.  (Ex  parte  McCabe,  46  Fed.  Rep. 
303.)  Upon  application  from  the  British  govern- 
ment an  arrest  of  a  British  subject  seeking  an  asylum 
in  this  country  may  be  made  upon  a  British  vessel 
wilhin  our  territory.  (In  re  Newman,  79  Fed.  Rep. 
622.) 


1321  CRIMINAL  PROCEDURE.  §§  586-587 

§  586.  Subpoena  of  witnesses — Costs  of  process 
and  fees  of  witnesses,  how  paid. — On  the  hearing 
of  any  case  under  a  claim  of  extradition  by  any 
foreign  government,  upon  affidavit  being  filed  by 
the  person  charged  setting  forth  that  there  are 
witnesses  whose  evidence  is  material  to  his  de- 
fense, that  he  cannot  safely  go  to  trial  without 
them,  what  he  expects  to  prove  by  each  of  them, 
and  that  he  is  not  possessed  of  sufficient  means, 
and  is  actually  unable  to  pay  the  fees  of  such  wit- 
nesses, the  judge  or  commissioner  before  whom 
such  claim  for  extradition  is  heard  may  order  that 
such  witnesses  be  subpoenaed;  and  in  such  cases 
the  costs  incurred  by  the  process,  and  the  fees  of 
witnesses,  shall  be  paid  in  the  same  manner  that 
similar  fees  are  paid  in  the  case  of  witnesses  sub- 
poenaed in  behalf  of  the  United  States.  (Ap- 
proved August  3,  1883,  sec.  3;  22  U.  S.  Stats.  216, 
superseding  Eev.  Stats,   sec.  5271.) 

§  587.  Witness  fees,  costs,  etc.,  to  be  certified 
to  secretary  of  state. — All  witness  fees  and  costs  of 
every  nature  in  cases  of  extradition,  including  the 
fees  of  the  commissioner,  shall  be  certified  by  the 
judge  or  commissioner  before  whom  the  hearing 
takes  place  to  the  secretary  of  state  of  the  United 
States,  who  is  hereby  authorized  to  allow  the  pay- 
ment thereof  out  of  the  appropriation  to  defray 
the  expenses  of  the  judiciary;  and  the  secretary  of 
state  shall  cause  the  amount  of  said  fees  and  costs 
so  alloAved  to  be  reimbursed  to  the  government  of 
the  United  States  by  the  foreign  government  by 
whom  the  proceedings  for  extradition  may  have 

Fed.  Proc— Ul. 


§  588  CBIMINAL  PROCEDURE.  1322 

been  instituted.     (Approved  August  3,  1882,  sec. 
4.     22  U.  S.  Stats.  216.) 

§  588.  Surrender  of  the  fugitive. — It  shall  be 
lawful  for  the  secretary  of  state,  under  his  hand 
and  seal  of  office,  to  order  the  person  so  committed 
to  be  delivered  to  such  person  as  shall  be  author- 
ized, in  the  name  and  on  behalf  of  such  foreign 
government,  to  be  tried  for  the  crime  of  which 
such  person  shall 'be  so  accused,  and  such  per- 
son shall  be  delivered  up  accordingly;  and  it  shall 
be  lawful  for  the  person  so  aiithorized  to  hold  such 
person  in  custody,  and  to  take  him  to  the  territory 
of  such  foreign  government,  pursuant  to  such 
treaty.  If  the  person  so  accused  shall  escape  out  of 
any  custody  to  which  he  shall  be  committed,  or  to 
which  he  shall  be  delivered,  it  shall  be  lawful  to  re- 
take such  person  in  the  same  manner  as  any  person 
accused  of  any  crime  against  the  laws  in  force  in 
that  part  of  the  United  States  to  which  he  shall  so 
escape,  may  be  retaken  on  an  escape.  (Rev.  Stats, 
sec.  5272.)"^ 

Surrender  under  treaty. — Persons  may  be  suiTen- 
dercd  under  a  treaty  made  after  the  crime  was  com- 
mitted, and  after  their  arrival  in  this  country.  (In  re 
Giacomo.  12  Blatchf.  391;  Fed.  Cas.  No.  8747.)  Under 
the  constitution,  the  subject  of  intercourse  with  for- 
eign powers  is  vested  exclusively  in  the  United  States 
government,  and  States  have  no  authority  to  grant 
or  oause  the  extradition  of  one  of  its  citizens  on  de- 
mand of  a  foreign  power.  (People  v.  Curtis.  .50  N.  Y. 
321;  Holmes  v.  .Tennison,  14  Pet.  .540;  Ex  parte  Smith. 
3  MeUean,  121;  Fed.  Cas.  No.  1206S;  Cooper  v.  Cal- 
braith,  3  Wash.  C.  C.  o4G;  Fed.  Cas.  No.  3193.)     No 


1323  CRIMINAL  PROCEDURE.  §  588 

State  can  delirer  up  a  fugitive  to  a  foreign  govern- 
ment, as  it  cannot  have  ti-eaty  relations  with  such 
government.  (Holmes  v.  .Tennison,  14  Pet.  540.) 
State  courts  cannot  interfere  with  the  surrender  of 
a  fugitive,  and  the  marshal  may  disregard  their  pro- 
cess. (6  Op.  Atty.-Gen.  227,  237,  270,  290,  466,  713; 
7  Op.  Atty.-Gen.  482.)  A  person  will  not  be  surren- 
dered to  a  foreign  power  where  the  United  States 
has  jurisdiction  over  the  ol¥ense  chai'ged.  (6  Op. 
Atty.-Gen.  85;  8  Op.  Atty.-Gen.  215,  306;  In  re  Stupp, 
11  Blatchf.  124;  Fed.  Gas.  No.  13562.)  If  it  ap- 
pears that  there  is  probable  reason  to  believe  defend- 
ant guilty,  justice  requires  that  he  should  be  put 
upon  his  trial.  (Ee  Herres,  33  Fed.  Rep.  165.)  Where 
a  commissionei',  without  special  authority,  issued  a 
warrant,  at  the  instance  of  the  British  consul,  for  the 
arrest  of  a  fugitive  charged  with  assault  with  intent 
to  murder  in  Ireland,  habeas  corpus  did  not  lie  to  re- 
lieve him  from  the  aiTest.  (Re  Kaine,  14  How.  103.) 
The  law  of  nations  does  not  require  the  surrender  of 
a  fugitive,  whether  citizen  or  alien,  to  a  foreign 
government,  in  the  absence  of  a  treaty  stipulation 
requiring  it.  (Ex  parte  McCabe,  supra.)  A  citizen  of 
the  United  States  cannot  be  surrendered  to  Mexico 
as  a  fugitive,  under  the  treaty  with  that  counti-y, 
which  provides  that  "neither  of  the  contracting  par- 
ties shall  be  bound  to  deliver  up  its  own  citizens." 
(Id.)  But  a  person  may  be  extradited  to  Mexico  for 
the  crime  of  forgery  of  an  instrument,  which  is 
made  an  offense  by  the  Mexican  laws,  he  having 
been  held  in  Mexico  for  the  offense.  (Benson  v.  Mc 
Mahon,  127  U.  S.  457.)  Under  the  treaties  of  1852 
between  the  United  States  and  Prussia,  and  other 
States  of  the  Germanic  Confederation,  an  application 
should  be  granted  where  the  evidence  is  such  as  to 
fairly  prove  the  charge.  (Re  Risch,  36  Fed.  Rep. 
546.)     A  person  brought  to  this  country  by  extradition 


§  589  CRIMINAL  PKOCEDXXRE.  lo24 

proceedings  cannot  be  convicted  of  any  other  offense 
than  that  cliarged,  altlioiigh  upon  the  same  evidence 
which  was  produced  before  the  committing  magis- 
trate in  England,  in  the  extradition  proceedings. 
(United  States  v.  Rauscher,  119  U.  S.  407.) 

Immunity  from  arrest  ixi  civil  action. — One  who 
has  been  extradited,  under  a  treaty  with  a  foreign 
country,  upon  a  charge  of  which  he  is  acquitted,  is 
not,  before  the  expiration  of  a  reasonable  time  for 
his  return  to  the  cpuntry  from  which  he  was  extra- 
dited, subject  to  aiTest  in  a  civil  action  in  a  State 
court  for  any  cause  arising  prior  to  his  extradition. 
(Ke  Keinitz,  39  Fed.  Kep.  204;  United  States  v. 
Kauscher,  supra.) 

§  589.  Time  allowed  for  extradition. — When- 
ever any  person  who  is  committed  under  this  title 
or  any  treaty,  to  remain  until  delivered  up  in  pur- 
suance of  a  requisition,  is  not  so  delivered  up  and 
conveyed  out  of  the  United  States  witliin  two  cal- 
endar months  after  such  commitment,  over  and 
above  the  time  actually  required  to  convey  the 
prisoner  from  the  jail  to  which  he  was  committed, 
by  the  readiest  way,  out  of  the  United  States, 
it  shall  be  lawful  for  any  judge  of  the  United 
States,  or  of  any  State,  upon  application  made  to 
him  by  or  on  behalf  of  the  person  so  committed, 
and  upon  proof  made  to  him  that  reasonable 
notice  of  the  intention  to  make  such  application 
has  been  given  to  the  secretary  of  state,  to  order 
the  person  so  committed  to  be  discharged  out  of 
custody,  unless  sufficient  cause  is  shown  to  such 
judge  wty  such  discharge  ought  not  to  be  ordered. 
(Rev.  Stats,  sec.  5273.) 


1325  CEIMINAL  PROCEDUEE.  §§  590-593 

§  590.     Continuance    of    provisions  limited. — ■ 

The  provisions  of  this  title  relating  to  the  surren- 
der of  persons  who  have  committed  crimes  in  for- 
eign countries  shall  continue  in  force  during  the 
existence  of  any  treaty  of  extradition  with  any  for- 
eign government,  and  no  longer.  (Kev.  Stats. 
sec.  5374.) 

§  591.  Protection  of  the  accused. — Whenever 
any  person  is  delivered  by  any  foreign  government 
to  an  agent  of  the  United  States,  for  the  purpose 
of  being  brought  within  the  United  States  and 
tried  for  any  crime  for  which  he  is  duly  accused, 
the  President  shall  have  power  to  take  all  neces- 
sary measures  for  the  transportation  and  safe-keep- 
ing of  such  accused  person,  and  for  his  security 
against  lawless  violence,  until  the  final  conclusion 
of  his  trial  for  the  crimes  or  offenses  specified  in 
the  warrant  of  extradition,  and  until  his  final  dis- 
charge from  custody  or  imprisonment  for  or  on 
account  of  such  crimes  or  offenses,  and  for  a  rea- 
sonable time  thereafter,  and  may  employ  such  por- 
tion of  the  land  or  naval  forces  of  the  United 
States,  or  of  the  militia  thereof,  as  may  be  neces- 
sary for  the  safe-keeping  and  protection  of  the  ac- 
cused.    (Rev.  Stats,   sec.  5375.) 

§  592.  Powers  of  agent  receiving  offenders  de- 
livered by  a  foreign  government. — Any  person 
duly  appointed  as  agent  to  receive,  in  behalf  of  the 
United  States,  the  delivery,  by  a  foreign  govern- 
ment, of  any  person  accused  of  crime  cetnmitted 
within  the  jurisdiction  of  the  United  States,  and 


§§  593-594  CETMIXAL  PROCEDURE.  1326 

to  convey  him  to  the  place  of  his  trial,  shall  have 
all  the  powers  of  a  marshal  of  the  United  States, 
in  the  several  districts  through  which  it  may  be 
necessary  for  him  to  pass  with  such  prisoner,  so 
far  as  such  power  is  requisite  for  the  prisoner's 
safe-keeping.  (Kev.  Stats,    sec.  5376.) 

§  593.  Penalty  for  opposing  agents,  etc. — 
Every  person  who  knowingly  and  willfully  ob- 
structs, resists,  or  opposes  such  agent  in  the  exe- 
cution of  his  duties,  or  who  rescues  or  attempts  to 
rescue  such  prisoner,  whetlier  in  the  custody  of  the 
agent  or  of  any  officer  or  person  to  whom  his  cus- 
tody has  lawfully  been  committed,  shall  be  pun- 
ishable by  a  fine  of  not  more  than  one  thousand 
dollars,  and  by  imprisonment  for  not  more  than 
one  year.     (Rev.  Stats,   sec.  5277.) 

§  594.  Evidence  on  the  hearing  in  extradition 
cases. — In  all  cases  where  any  depositions,  war- 
rants, or  other  papers  or  copies  thereof  shall 
be  offered  in  evidence  upon  the  hearing  of  any  ex- 
tradition case  under  title  sixty-six  of  the  Revised 
Statutes  of  the  United  States,  such  depositions, 
warrants,  and  other  papers,  or  the  copies  thereof, 
shall  be  received  and  admitted  as  evidence  on  such 
hearing,  for  all  the  purposes  of  such  hearing,  if 
they  shall  be  properly  and  legally  authenticated 
80  as  to  entitle  them  to  be  received  for  similar  pur- 
poses by  the  tribunals  of  the  foreign  country  from 
which  the  accused  party  shall  have  escaped,  and 
the  certificate  of  the  principal  diplomatic  or  consu- 
lar officer  of  the  United  States  resident  in  such  for- 


1527  CKIMTNAL  PROCEDURE.  §  594 

eign  country  shall  be  proof  tliat  any  deposition, 
warrant,  or  other  paper,  or  copies  thereof,  so  of- 
fered, are  authenticated  in  the  manner  required 
by  this  act.     (22  U.  S.  Stats.  216,  sec.  5.) 

Hearing  on  application  for  extradition. — The  pro- 
cet'dings  are  not  to  be  conducted  with  extreme  tech- 
nicality. (In  re  Breen,  73  Fed.  Rep.  458.)  Where  there 
is  an  application  for  extradition  sustained  by  com- 
plaint on  oath,  it  is  not  for  the  judge  to  consider 
whether  or  not  a  foreign  government  has  authorized 
the  application;  he  has  only  to  examine  the  evidence 
of  criminality,  and  if  not  sufficient  to  sustain  the 
charge,  to  certify  the  same  to  the  secretary  of  State. 
(Re  Dugan,  2  Low.  3(57;  Fed.  Cas.  No.  4120.)  The 
first  question  is  one  of  law,  open  upon  the  face  of 
the  papers  to  judicial  inquiry;  the  second  is  one  of 
fact,  upon  which  the  governor's  decision  is  sufficient 
to  justify  removal  until  the  presumption  in  his  favor 
is  overthrown.  (Roberts  v.  Reilly,  116  U.  S.  80.)  In 
a  proceeding  under  the  treaty  with  Great  Britain,  evi- 
dence of  criminality  must  be  such  as  woiUd  justify 
the  arrest  and  commitment  of  the  accused  according 
to  law  in  the  place  where  he  is  found.  (Re  McPhun, 
24  Blatchf.  254;  30  Fed.  Rep.  57;  Ex  parte  Kaine,  3 
Blatchf.  1;  Fed.  Cas.  No.  7597;  United  States  v,  Warr, 
3  N.  Y.  Leg.  Obs.  346;  Fed.  Cas.  No.  16644;  Re  Heil- 
bronn,  12  N.  Y.  Leg.  Obs.  65;  Fed.  Cas.  No.  6323;  4 
Op.  Atty.-Gen.  201,  330;  Re  Kelly,  2  Low.  339;  Fed. 
Cas.  No.  7655;  Re  MacDonnell,  18  Int.  Rev.  Rec.  11; 
Fed.  Cas.  No.  8772;  Re  Farez,  2  Abb.  U.  S.  346;  Fed, 
Cas.  No.  4645.)  Where  a  requisition  was  had  on  a 
chairge  of  embezzling  money,  an  indictment  for  em- 
bezzling money  and  property  simply  charges  the 
same  offense  in  different  ways  to  meet  the  evidence 
as  it  may  appear  on  the  trial,  and  is  unobjectionable. 
(Waterman  v.  State,  116  Ind.  51.)    On  the  extradi- 


§  594  CRIMINAL  PEOCEDUKE.  1328 

tion  of  a  person  charged  with  forgery,  embezzlement, 
.  and  larceny,  the  demanding  government  and  a  com- 
missioner need  not  elect  the  charge  for  which  he  shall 
be  tried.     (Bryant  v.  United  States,  167  U.  S.  104.) 

Evidence  admissible.— Copies  of  depositions  taken 
by  a  magistrate  in  a  foreign  country  must  be  certi- 
fied by  the  United  States  consul  there  to  be  authenti- 
cated, so  as  to  entitle  them  to  be  received  for  similar 
purposes  by  the  tribunals  of  the  foreign  country.  (Re 
McPhun,  24  Blatchf.  254;  30  Fed.  Rep.  57.)  Upon 
hearing  a  case  arising  imder  treaty,  not  only  copies 
of  depositions,  but  also  copies  of  warrants  and  other 
papers,  certified  under  the  liand  of  the  person  issuing 
the  same,  and  attested  on  oath  of  the  party  producing 
them  to  be  true  copies,  are  admissible  as  evidence 
of  criminality  of  the  accused.  (Ex  parte  Ross,  2 
Bond.  2.52;  Fed.  Cas.  No.  12069.)  The  act  of  congress 
of  1860,  relating  to  proof  of  authenticity  of  papers 
produced  in  the  proceedings  does  not  repeal  prior  acts, 
but  merely  provides  another  mode  of  authentication. 
(Ibid.)  The  judicial  proceeding  in  a  Pnissian  court 
being  valid  evidence  in  that  country,  a  certiiicate  of 
the  T'nitcd  States  minister  that  the  documents  are 
legally  authenticated  entitles  them  to  be  received  here 
as  evidence  where  the  certiticates  are  in  sufficient 
form.  (Ke  Behrendt.  23  Blatchf.  40;  22  Fed.  Rep.  699; 
Re  Farez,  7  Blatchf.  345;  Fed.  Cas.  No.  4645;  Re 
Wadge,  15  Fed.  Rep.  864;  21  Blatchf.  300.)  Under  the 
act  of  1882  regarding  evidence  in  extradition  cases, 
the  certificate  of  the  resident  minister  to  copies  of 
documentary  evidence  from  abroad  may  be  supple- 
mentiHj  l)y  oral  proof  of  competency  of  the  originals. 
(Re  Wadge,  15  Fed.  Rep.  864;  21  Blatchf.  300;  Re 
Ileinrich.  5  Blatchf.  414;  Fed.  Cas.  No.  a'!69.)  Under 
the  Revised  Statutes,  depositions  may  be  authenti- 
cated by  a  vice-consul  of  the  United  States.  (Re 
Herres,  33  Fed.  Rep.  165.)     In  an  extradition  proceed- 


1329  CKIMINAL  PROCEDUKE.  §  594 

ing  under  the  treaty  with  Great  Britain  of  August  9, 
1842,  the  evidence  of  the  fugitive's  criminality  must 
be  such  as  would  justify  his  apprehension  and  com- 
mitment according  to  the  law  of  the  place  where  he 
Is  found.  (Re  McPhun,  24  Blatchf.  254;  30  Fed.  Rep. 
57.)  Copies  af  depositions  talcen  by  a  magistrate  in 
such  country  must  be  certified  by  the  United  States 
consul  there  to  be  authenticated.  (Id.)  A  court  will 
take  judicial  notice  that  the  charge  de  affaires  who 
signed  the  depositions,  warrants,  etc.,  offered  in  evi- 
dence was  the  chief  diplomatic  officer  of  the  country 
at  the  time.     (In  re  Orpen,  86  Fed.  Rep.  760.) 

Rights  of  party  accused.— The  party  proceeded 
against  has  the  right  to  examine  witnesses  in  his  own 
behalf.  (Re  Kelley,  25  Fed.  Rep.  268.)  The  testi- 
mony of  the  accused  is  not  admissible,  although  the 
judge  be  sitting  in  a  State  where  such  evidence  is  ad- 
missible. (Re  Dugan,  2  Low.  .367;  Fed.  Cas.  No. 
4120.)  The  evidence  may  be  in  the  form  authorized 
in  the  country  whence  it  comes,  and  in  substance 
sufficient  to  warrant  action  in  the  country  whose  ac- 
tion is  involved.  (Re  Dugan,  2  Low.  367;  Fed.  Cas. 
No.  4120.)  It  may  be  open  to  the  petitioner,  when 
before  the  Canadian  courts,  to  show  that  the  extra- 
dition proceedings  were  not  prosecuted  in  good  faith. 
But,  having  been  surrendered,  it  is  not  for  him  to 
raise  that  question  before  the  tribunals  of  his  own 
country.  (Adriance  v.  Lagrave,  59  N.  Y.  110;  Dow's 
Case,  18  Fa.  37;  Re  Miller,  23  Fed.  Rep.  34.)  Under 
the  Canada  Extradition  Statute,  s.  s.  3,  sec.  9,  the 
accused  can  only  show  that  the  offense  is  either  a 
political  one,  or  that  it  is  not  an  extradition  crime. 
The  investigation  cannot  talie  the  features  of  a  trial. 
(Re  Debaun,  Can.  Sup.  Ct.  11  Or.  L.  Mag.  47.)  In 
order  to  justify  the  extradition  from  England  of  the 
subject  of  a  foreign  State,  there  must  be  evidence  of 
an  act    committed    by  him  in    the  foreign    country, 


§  595  CRIMINAL  PROCEDURE.  1330 

amounting  to  an  offense  against  the  law  of  such  coun- 
try, and  which,  if  committed  in  England,  would 
amount  to  an  offense  against  English  law.  (Re  Bel- 
lencontre  (1S91),  2  Q.  B.  122.)  The  accused  cannot  be 
admitted  to  bail  during  a  continuance  of  the  heai'ing 
on  extradition.     (In  re  Carrier,  &7  Fed.  Rep.  578.) 

Nature  of  the  proceedings.— Extradition  proceed 
ings  do  not  Involve  in  their  nature  the  right  of  ac 
cused  not  to  be  prosecuted  upon  any  other  charge 
than  that  upon  which  his  extradition  is  asked 
(United  States  v.  Lawrence,  13  Blatchf.  295:  Fed.  Cas 
Jwo.  15.573;  G  Op.  Atty.-Gen.  G91;  United  States  v.  Cald 
well,  8  Blatchf.  131;  Fed.  Cas.  No.  14707;  Adriance  v 
Lagrave,  59  N.  Y.  110;  Re  Miller,  23  Fed.  Rep.  33.) 
But  one  extradited  from  a  foreign  country  may  claim 
exemption  from  trial  upon  any  charge  other  than  that 
mentioned  in  the  extradition  proceedings;  and  this 
right  cannot  be  waived.  (Ex  parte  Coy,  32  Fed.  Rep. 
911.)  The  extradition  proceedings  are  in  some  re- 
spects like  preliminary  examinations;  and  if  it  appear 
that  a  crime  has  been  committed,  and  that  there  is 
probable  reason  to  believe  that  defendant  is  guilty  of 
that  crime,  substantial  justice  requires  that  he  shall 
be  put  upon  trial.  (Re  Herres,  33  Fed.  Rep.  1G5.) 
Extradition  is  not  defeated  by  the  fact  that  a  part 
of  the  alleged  offenses  named  In  the  warrant  are  not 
extraditable  if  the  others  are.  (Re  Bellencoutre 
(1891),  2  Q.  B.  122.) 

^  595.  Fug"itives  from  justice  of  a  State  or  Ter- 
ritory.— \\'liciiever  the  executive  autliority  of  any 
State  or  Territory  demands  any  person  as  a  fugi- 
tive from  justice,  of  the  executive  authority  of  any 
State  or  Territory  to  which  such  person  has  fled, 
and  produces  a  copy  of  an  indictment  found,  or 
an  affidavit  made  before  a  magistrate  of  any  State 


1331  CRIMINAL  PROCEDURE.  §  595 

or  Territory,  charging  the  person  demanded  with 
having  committed  treason,  felony,  or  other  crime, 
certified  as  authentic  by  the  governor  or  chief  mag- 
istrate of  the  State  or  Territory  from  whence  the 
person  so  charged  has  fled,  it  shall  be  the  duty  of 
the  executive  authority  of  the  State  or  Territory  to 
which  such  person  has  fled  to  cause  him  to  be  ar- 
rested and  secured,  and  to  cause  notice  of  the  ar- 
rest to  be  given  to  the  executive  authority  making 
such  demand,  or  to  the  agent  of  such  authority 
appointed  to  receive  the  fugitive,  and  to  cause  the 
fugitive  to  be  delivered  to  such  agent  when  he  shall 
appear.  If  no  such  agent  appears  within  six 
months  from  the  time  of  the  arrest,  the  prisoner 
may  be  discharged.  All  costs  or  expenses  incur- 
red in  the  apprehending,  securing  and  transmit- 
ting such  fugitive  to  the  State  or  Territory  making 
such  demand,  shall  be  paid  by  such  State  or  Terri- 
tory.    (Rev.  Stats,  sec.  5278!) 

Interstate  Extradition.— (See  Robb  v.  Connolly,  111 
U.  S.  G24.)  The  term  "magistrate,"  used  in  this  sec- 
tion, includes  an  assistant  police  magistrate  of  a  city. 
(Kurtz  v.  State,  22  Fla.  36.)  A  person  who  has  com- 
mitted a  crime  in  one  State,  and  has  left  it,  so  as  to 
be  beyond  the  reach  of  process,  is  a  fugitive  from  jus- 
tice, regardless  of  his  purpose  in  leaving.  (St^te  v. 
Richter,  37  Minn.  430;  In  re  Bloch,  87  Fed.  Rep.  981; 
In  re  White,  14  U.  S.  App.  87;  55  Fed.  Rep.  54.)  Ex- 
tradition from  one  State  to  another  can  be  had  only 
when  the  person  cliarged  is  a  fugitive  from  the  State 
in  which  the  crime  was  committed.  (State  v.  Jack- 
son^  36  Fed.  Rep.  258.)  Tlie  words  "certified  to 
be  in  due  form"  are  equivalent  to  "certified  as  authen- 
tic" in  the  above  section.     (Ex  parte  Dawson,  83  Fed. 


§  596  CRIMINAL  PROCEDURE.  1332 

Eep.  30G.)  An  iuformation  is  not  tbe  equivalent  of  an 
indictment  provided  for  by  tliis  section;  nor  is  tlie 
verilicatiou  on  belief  the  equivalent  of  an  affidavit 
required  by  the  section.  (Ex  parte  Harte.  25  U.  S. 
App.  22;  63  Fed.  Hep.  249.)  Under  this  section,  affi- 
davits tiled  with  the  governor  requesting  him  to  make 
a  requisition,  though  made  a  part  of  the  requisition 
papers,  are  not  sufficient  where  the  governor  only 
certities  to  the  authenticity  of  an  information  and 
makes  his  demand  on  this.  (Ex  parte  Harte,  25  U.  S. 
App.  22;  63  Fed.  Jlep.  249.) 

§  596.     Penalty  for  resisting  agent,  etc. — Any 

agent  so  appointed  who  receives  the  iugitive  into 
his  custody  shall  be  empowered  to  transport  him  to 
the  State  or  Territory  from  which  he  has  .fled.  And 
every  person  who,  by  force,  sets  at  liberty  or  res- 
cues the  fugitive  from  such  agent  while  so  trans- 
porting him,  shall  be  fined  not  more  than  five  hun- 
dred dollars,  or  imprisoned  not  more  than  one 
year.     (Rev.  Stats,    sec.  5379.) 

Review  on  habeas  corpus.— The  Federal  and  State 
courts  have  concurrent  jurisdiction  in  extradition  pro- 
ceedings. (Ex  parte  Brown.  28  Fed.  Rep.  653;  Re 
Roberts,  24  Fed.  Rep.  132.)  And  the  question  of  law- 
ful arrest  of  a  person  as  a  fugitive  from  justice  from 
a  State  may  be  inquired  into  by  either  a  Federal  or 
a  State  court.  (Roberts  v.  Reilly,  116  U.  S.  80;  Ro 
Doo  Woon,  18  Fed.  Rep.  898.)  A  writ  of  habeas  cor- 
pus in  a  case  of  extradition  cannot  perform  the  office 
of  a  writ  of  error.  (Willis  v.  Bayles,  105  Ind.  363; 
State  V.  5;eel,  48  Ark.  283;  Ex  parte  Boennenghausen, 
21  Mo.  App.  267;  In  re  Oteiza  y  Corte.s,  130  U.  S. 
330;  I'owell  v.  Dayton  etc.  R.  Co.,  16  Or.  33;  8  Am. 
St.  Rep.  251;  Re  Savin,  131  U.  S.  267.)  The  court 
cannot  investigate  the  question  as  to  the  guilt  or  iu- 


1333  CRIMINAL  PROCEDURE.  §  597 

nocence  of  the  defendant  (Re  Roberts,  24  Fed.  Rep. 
132) ;  or  the  grade  of  the  guilt  (Re  Palmer.  18  Int.  Rev. 
Eec.  84;  Fed.  Cas.  No.  10679).  Although  courts  may 
review  the  decisions  of  executive  authority  in  such 
proceedings,  they  will  not  overrule  the  decisions  un- 
less they  are  clearly  satisfied  that  an  error  has  been 
committed.  (Ex  parte  Brown,  28  Fed.  Rep.  653.) 
The  court  will  not  reverse  the  decision  of  the  com- 
missioner on  the  question  of  criminality  of  the  ac- 
cused, (lie  Stupp,  12  Blatchf.  501;  Fed.  Cas.  No. 
13.563;  Re  MacDonuell,  11  Blatchf.  170;  Fed.  Cas.  No. 
8772;  Re  Vandervelpen,  14  Blatchf.  137;  Fed.  Cas. 
No.  16844;  Re  Wahl,  15  Blatchf.  334;  Fed.  Cas.  No. 
17041;  Re  Wiegand,  14  Blatchf.  370;  Fed.  Cas.  No. 
17618.) 

§  597.  Arrest  of  deserting  seamen  from  foreign 
vessels. — On  application  of  a  consul  or  vice-consul 
of  any  foreign  government  having  a  treaty  with  the 
United  States  stipulating  for  the  restoration  of 
seamen  deserting,  made  in  writing,  stating  that  the 
person  therein  named  has  deserted  from  a  vessel 
of  any  such  government,  while  in  any  port  of  the 
United  States,  and  on  proof  by  the  exhibition  of 
the  register  of  the  vessel,  ship's  roll,  or  other  offi- 
cial document,  that  the  person  named  belonged, 
at  the  time  of  desertion,  to  the  crew  of  such  vessel, 
it  shall  be  the  duty  of  any  court,  judge,  commis- 
sioner of  any  circuit  court,  justice,  or  other  mag- 
istrate, having  competent  power,  to  issue  warrants 
to  cause  such  person  to  be  arrested  for  examina- 
tion. If,  on  examination,  the  facts  stated  are 
found  to  be  true,  the  person  arrested,  not  being  a 
citizen  of  the  United  States,  shall  be  delivered  up 
to  the  consul  or  vice-consul,  to  be  sent  back  to  the 

Fed.  Proc— 112. 


§  598  CKIMINAI,  PROCEDURE.  1334 

dominions  of  any  such  government,  or,  on  the  re- 
quest and  at  the  expense  of  the  consul  or  vice-con- 
sul, shall  be  detained  until  the  consul  or  vice-con- 
sul finds  an  opportunity  to  send  him  back  to  the 
dominions  of  any  such  government.  No  person 
so  arrested  shall  be  detained  more  than  two  months 
after  his  arrest;  but  at  the  end  of  that  time  shall  be 
set  at  liberty,  and  shall  not  be  again  molested  for 
the  same  cause.  If  any  such  deserter  shall  be 
found  to  have  committed  any  crime  or  offense,  his 
surrender  may  be  delayed  until  the  tribunal  be- 
fore which  the  case  shall  be  depending,  or  may  be 
cognizable,  shall  have  pronounced  its  sentence,  and 
such  sentence  shall  have  been  carried  into  effect. 
(Eev.  Stats,  sec.  5280.) 

§  598.  Power  of  foreign  consuls  over  disputes 
between  seamen. — Whenever  it  is  stipulated  by 
treaty  or  convention  between  the  United  States 
and  any  foreign  nation  that  the  consul-general, 
consuls,  vice-consuls,  or  consular  or  commercial 
agents  of  each  nation,  shall  have  exclusive  jurisdic- 
tion of  controversies,  difficulties,  or  disorders  aris- 
ing at  sea  or  in  the  waters  or  ports  of  the  other 
nation,between  the  master  or  officers  and  any  of 
the  crew,  or  between  any  of  the  crew  themselves, 
of  any  vessel  belonging  to  the  nation  represented 
by  such  consular  officer,  such  stipulations  shall  be 
executed  and  enforced  within  the  jurisdiction  of 
the  United  States  as  hereinafter  declared.  But 
before  this  section  shall  take  effect  as  to  the  ves- 
sels of  any  particular  nation  having  such  treaty 
with  the  United  States,  the  President  shall  be  sat- 


1335  CRIMINAL  PEOCEDUBE.  §  599 

isfied  that  similar  provisions  have  been  made  for 
the  execution  of  such  treaty  by  the  other  coniract- 
ing  party,  and  shall  issue  his  proclamation  to  that 
effect,  declaring  this  section  to  be  in  force  as  to 
such  nation.     (Rev.  Stats,  sec.  4079.) 

§  599.  Arrest  of  seamen  on  application  of  con- 
sul.— In  all  cases  within  the  purview  of  the  pre- 
ceding section,  the  consul-general,  consul,  or  other 
consular  or  commercial  authority  of  such  foreign 
nation  charged  with  the  appropriate  duty  in  the 
particular  case,  may  make  application  to  any  court 
of  record  of  the  United  States,  or  to  any  Judge 
thereof,  or  to  any  commissioner  of  a  circuit  court, 
setting  forth  that  such  controversy,  difficulty,  or 
disorder  has  arisen,  briefly  stating  the  nature 
thereof,  and  when  and  where  the  same  occurred, 
and  exhibiting  a  certified  copy  or  extract  of  the 
shipping  articles,  roll,  or  other  proper  paper  of  the 
vessel,  to  the  effect  that  the  person  in  question  is 
of  the  crew  or  ship's  company  of  such  vessel;  and 
further  stating  and  certifying  that  such  person  has 
withdrawn  himself,  or  is  believed  to  be  about  to 
withdraw  himself,  from  the  control  and  discipline 
of  the  master  and  officers  of  the  vessel,  or  that  he 
has  refused,  or  is  about  to  refuse,  to  submit  to  and 
obey  the  lawful  jurisdiction  of  such  consular  or 
commercial  authority  in  the  premises;  and  further 
stating  and  certifying  that,  to  the  best  of  the 
knowledge  and  belief  of  the  officer  certifying,  such 
person  is  not  a  citizen  of  the  United  States.  Such 
application  shall  be  in  writing  and  duly  authenti- 
cated by  the  consular  or  other  sufficient  official 


§  600  CRIMINAL  PROCEDURE.  1336 

seal.  Thereupon  such  court,  judge,  or  commis- 
eioner  shall  issue  his  warrant  for  the  arrest  of  the 
person  so  complained  of,  directed  to  the  marshal  of 
the  United  States  for  the  appropriate  district,  or 
in  his  discretion  to  any  person  being  a  citizen  of 
the  United  States,  whom  he  may  specially  depute 
for  the  purpose,  requiring  such  person  to  be 
hrought  before  him  for  examination  at  a  certain 
time  and  place.     (Rev.  Stats,    sec.  4080.) 

§  600.     Commitment    and    discharge. — If,    on 

Buch  examination,  it  is  made  to  appear  that  the 
person  so  arrested  is  a  citizen  of  the  United  States, 
he  shall  be  forthwith  discharged  from  arrest,  and 
shall  be  left  to  the  ordinary  course  of  law.  But 
if  this  is  not  made  to  appear,  and  such  court, 
judge,  or  commissioner  finds,  upon  the  papers 
hereinbefore  referred  to,  a  sufficient  prima  facie 
case  that  the  matter  concerns  only  the  internal 
order  and  discipline  of  such  foreign  vessel,  or, 
whether  in  its  nature  civil  or  criminal,  does  not 
affect  directly  the  execution  of  the  laws  of  the 
United  States,  or  the  rights  and  duties  of  any  cit- 
izen of  the  United  States,  he  shall  forthwith,  by 
his  warrant,  commit  such  person  to  prison,  where 
prisoners  under  sentence  of  a  court  of  the  United 
States  may  be  lawfully  committed,  or,  in  his  dis- 
cretion, to  the  master  or  chief  officer  of  such  for- 
eign vessel,  to  be  subject  to  the  lawful  orders,  con- 
trol, and  discipline  of  such  master  or  chief  officer, 
and  to  the  jurisdiction  of  the  consular  or  commer- 
cial authority  of  the  nation  to  which  such  vessel 
belongs,  to  the  exclusion  of  any  authority  or  juris- 


1337  CEIMINAL  PROCEDUKE.  §§601-603 

diction  in  the  premises  of  the  United  States  or  any 
State  thereof.  No  person  shall  be  detained  more 
than  two  months  after  his  arrest,  but  at  the  end 
of  that  time  shall  be  set  at  liberty  and  shall  not 
again  be  arrested  for  the  same  cause.  The  ex- 
penses of  the  arrest  and  the  detention  of  the  per- 
son so  arrested  shall  be  paid  by  the  consular  offi- 
cers making  the  application.  (Eev.  Stats,  sec. 
4081.) 

§  601.  Custody  of  United  States  prisoners — 
Expenses  to  be  paid  by  United  States. — All  the  ex- 
penses attendant  upon  the  transportation  from 
place  to  place,  and  upon  the  temporary  or  perma- 
nent confinement  of  persons  arrested  or  committed 
under  the  laws  of  the  United  States,  as  well  as 
upon  the  execution  of  any  sentence  of  a  court 
thereof  respecting  them,  shall  be  paid  out  of  the 
treasury  of  the  United  States  in  the  manner  pro- 
vided by  law.     (Eev.  Stats,    sec.  5536.) 

§  602.  Places  of  confinement. — In  a  State 
where  the  use  of  jails,  penitentiaries,  or  other 
houses  is  not  allowed  for  the  imprisonment  of  per- 
sons arrested  or  committed  under  the  authority  of 
the  United  States,  any  marshal  in  such  State,  un- 
der the  direction  of  the  judge  of  the  district,  may 
hire,  or  otherwise  procure,  within  the  limits  of 
such  State,  a  convenient  place  to  serve  as  a  tempo- 
rary jail.     (Eev.  Stats,  sec.  5537.) 

§  603.  Marshals  to  make  provision  for  safe- 
keeping of  prisoners. — The  marshal    shall    make 


§§  604-606  CRIMINAL  PEOCEDUBE.  1338 

such  other  provision  as  he  may  deem  expedient  and 
necessary  for  the  safe-keeping  of  the  prisoners  ar- 
rested or  committed  under  the  authority  of  the 
United  States,  until  permanent  provision  for  that 
purpose  is  made  by  law.     (Eev.  Stats,   sec.  5538.) 

§  604.  United  States  convicts  in  State  peniten- 
tiaries.— Whenever  any  criminal,  convicted  of  any 
offense  against  the  United  States,  is  imprisoned  in 
the  jail  or  penitentiary  of  any  State  or  Territory, 
such  criminal  shall  in  all  respects  be  subject  to  the 
same  discipline  and  treatment  as  convicts  sen- 
tenced by  the  courts  of  the  State  or  Territory  in 
which  such  jail  or  penitentiary  is  situated;  and 
while  so  confined  therein  shall  be  exclusively  under 
the  control  of  the  officers  having  charge  of  the 
same,  under  the  laws  of  such  State  or  Territory. 
(Rev.  Stats,   sec.  5539.) 

§  605.  Selection  of  penitentiary  in  a  divided 
district. — Where  a  judicial  district  has  been  or 
may  hereafter  be  divided,  the  circuit  and  district 
courts  of  the  United  States  shall  have  power  to 
sentence  any  one  convicted  of  an  offense  punish- 
able by  imprisonment  at  hard  labor  to  the  peniten- 
tiary within  the  State,  though  it  be  out  of  the  judi- 
cial district  in  which  the  conviction  is  had.  (Rev. 
Stats,   sec.  5540.) 

§  606.  Sentences  for  longer  term  than  a  year, 
where  to  be  executed. — In  every  case  where  any 
person  convicted  of  an  offense  against  the  United 
States  is  sentenced  to  imprisonment  for  a  period 


1339  CKIMINAL  PROCEDURE.  §§  607    608 

longer  than  one  year,  the  court  by  which  the  sen- 
tence is  passed  may  order  the  same  to  be  executed 
in  any  State  jail  or  penitentiary  within  the  dis- 
trict or  State  where  such  court  is  held,  the  use  of 
which  jail  or  penitentiary  is  allowed  by  the  legis- 
lature of  the  State  for  that  purpose.  (Rev.  Stats, 
sec.  5541.) 

§•607.  Penitentiary  sentences,  where  to  be  exe- 
cuted.— In  every  case  where  any  criminal  convicted 
of  any  offense  against  the  United  States  is  sen- 
tenced to  imprisonment  and  confinement  to  hard 
labor,  it  shall  be  lawful  for  the  court  by  which 
the  sentence  is  passed  to  order  the  same  to  be  exe- 
cuted in  any  State  jail  or  penitentiary  within  the 
district  or  State  where  such  court  is  held,  the  use 
of  which  jail  or  penitentiary  is  allowed  by  the  legis- 
lature of  the  State  for  that  purpose.  (Rev.  Stats, 
sec.  5542.) 

Where  convict  imprisoned.— If  the  law  prescribes 
a  place  of  imprisonment  the  court  cannot  direct  a  dif- 
ferent place  not  authorized  (In  re  Bonner,  151  TJ. 
S.  242);  and  if  the  court  orders  imprisonment  in  a 
place  not  authorized  by  law,  the  prisoner  is  entitled 
to  a  writ  of  habeas  corpus  to  relieve  him  from  im- 
prisonment at  that  place,  but  without  prejudice  to  his 
being  sentenced  in  accordance  with  law  upon  the  ver- 
dict against  him.  (In  re  Bonner,  151  U.  S.  242.) 
Under  this  and  the  succeeding  section,  the  court  has 
no  power  after  the  expiration  of  the  term  in  which 
such  sentence  is  imposed  to  order  the  removal  of  a 
prisoner  from  a  State  prison  to  a  county  jail.  (United 
States  V.  Greenwald,  64  P"'ed.  Rep.  6.) 

§  608.     Deduction  from  term  of   imprisonment 


§  609  CRIMINAL  PROCEDURE.  1340 

for  good  conduct. — All  persons  who  have  "been  or 
may  be  convicted  of  any  offense  against  the  laws  of 
the  United  States,  and  confined  in  any  State  jail  or 
penitentiary  in  execution  of  the  judgment  upon 
such  conviction,  who  so  conduct  themselves  that 
no  charge  for  misconduct  is  sustained  against 
them,  shall  have  a  deduction  of  one  month  in  eacli 
year  made  from  the  term  of  their  sentence,  and 
shall  be  entitled  to  their  discharge  so  much  the 
sooner,  upon  the  certificate  of  the  warden  or  keeper 
of  such  jail  or  penitentiary,  with  the  approval  of 
the  attorney  general.     (Eev.  Stats,  sec.  5543.) 

Note.— This  section  governs  commutations  of  sen- 
tences of  offenders  confined  in  county  jails.  (.In  re 
Deering,  60  Fed.  Rep.  265.) 

§  609.  To  what  prisoners  to  apply. — The  pre- 
ceding section,  however,  shall  apply  to  such  prison- 
ers only  as  are  confined  in  jails  or  penitentiaries 
where  no  credits  for  good  behavior  are  allowed; 
but  in.  other  cases,  all  prisoners  now  or  hereafter 
confined  in  the  jails  or  penitentiaries  of  any  State, 
for  offenses  against  the  United  States,  shall  be  en- 
titled to  the  same  rule  of  credits  for  good  behavior 
applicable  to  other  prisoners  in  the  same  jail  or 
penitentiary.     (Rev.  Stats,    sec.  5544.) 

Good  conduct  credits. — A  sentence  to  commence  on 
the  expiration  of  a  preceding"  sentence  is  not  uncer- 
tain because  l)y  the  above  section  convicts  are  entitled 
to  good  conduct  credits  on  their  sentences.  (Howard 
V.  United  States,  43  U.  S.  App.  678;  75  Fed.  Hep.  986.) 
A  prisoner  confined  in  a  penitentiary  of  NeAV  York 
State  for  an  offense  against  the  United  States  is  noc 
entitled  to  an  unconditional  allowance  for  good  be- 


1341  CBIMINAL  PEOCEDUBE.  §§610-611 

havior,  but  to  the  same  rule  of  credits  applicable  by 
the  law  of  the  State  to  other  prisoners  in  the  same 
penitentiary.     (In  re  Willis,  83  Fed.  Rep.  148.) 

§  610.  Credits  for  good  conduct  and  on  dis- 
charge, etc. — That  all  prisoners  who  have  been,  or 
shall  hereafter  be,  convicted  of  any  offense  against 
the  laws  of  the  United  States,  and  confined,  in  ex- 
ecution of  the  judgment  or  sentence  upon  such 
conviction,  in  any  prison  or  penitentiary  of  any 
State  or  Territory  which  has  no  system  of  commu- 
tation for  its  own  prisoners,  shall  have  a  deduction 
from  their  several  terms  of  sentence  of  five  days 
in  each  and  every  calendar  month  during  which  no 
charge  of  misconduct  shall  have  been  sustained 
against  each  severally,  who  shall  be  discharged  at 
the  expiration  of  his  term  of  sentence  less  the  time 
so  deducted,  and  a  certificate  of  the  warden  or 
keeper  of  such  prison  [or]  penitentiary  of  such  de- 
duction shall  be  entered  on  the  warrant  of  com- 
mitment; provided,  that  if  during  the  term  of  im- 
prisonment the  prisoner  shall  commit  any  offense 
for  which  he  shall  be  convicted  by  a  jury,  all  re- 
missions theretofore  made  shall  be  thereby  an- 
nulled. (18  Stat.  L.  479;  1  Sup.  Eev.  Stats.  184, 
sec.  1.) 

§  611.  To  be  provided  with  clothes  and  money 
on  discharge. — That  on  the  discharge  from  any 
prison  of  any  person  convicted  under  the  laws  of 
the  United  States  on  indictment,  he  or  she  shall  be 
provided  by  the  warden  or  keeper  of  said  prison 
with  one  plain  suit  of  clothes  and  five  dollars  in 
money,  for  which  charge  shall  be  made  and  allowed 


§§612-613  CBIMINAL  PROCEDTTBE.  1342 

in  the  accounts  of  said  prison  with  the  United 
States;  provided,  that  this  section  shall  not  apply 
to  persons  sentenced  to  a  term  of  imprisonment 
of  less  than  six  months.  (Act  of  March  3,  1875, 
18  Stat.  L.  479;  1  Sup.  Rev.  Stats.  184,  sec.  2.)      - 

§  612.  Actual  reasonahle  cost  of  keeping 
prisoners  to  be  paid. — Hereafter  there  shall  be  al- 
lowed and  paid  by  the  attorney  general,  for  the 
subsistence  of  prisoners  in  the  custody  of  any  mar- 
shal of  the  United  States  and  the  warden  of  the 
jail  in  the  District  of  Columbia,  such  sum  only  as 
it  reasonably  and  actually  cost  to  subsist  them. 
And  it  shall  be  the  duty  of  the  attorney  general 
to  prescribe  such  regulations  for  the  government 
of  the  marshals  and  the  warden  of  the  jail  in  the 
District  of  Columbia,  in  relation  to  their  duties 
under  this  chapter,  as  will  enable  him  to  determine 
the  actual  and  reasonable  expenses  incurred.  (Eev. 
Stats,    sec.  5545.) 

§  613.  Designation  of  penitentiary  "by  attorney 
general. — All  persons  who  liave  been,  or  who  may 
hereafter  be,  convicted  of  crime  by  any  court  of  the 
United  States  whose  punishment  is  imprisonment 
in  a  district  or  territory  where,  at  the  time  of  con- 
viction, or  at  any  time  during  the  term  of  impris- 
onment, there  may  be  no  penitentiary  or  jail  suit- 
able for  the  confinement  of  convicts  or  available 
therefor,  shall  be  confined  for  the  term  for  which 
they  have  been  or  may  be  sentenced,  or  during  the 
residue  of  said  term,  in  some  suitable  jail  or  peni- 
tentiary in  a  convenient  State  or  Territory,  to  be 


13-13  CIUMIXAL  PROCEDURE.  §  613 

designated  by  the  attorney  general,  and  shall  be 
transported  and  delivered  to  the  warden  or  keeper 
such  jail  or  penitentiary  by  the  marshal  of  the 
^district  or  Territory  where  the  conviction  has  oc- 
curred; and  if  the  conviction  be  had  in  the  Dis- 
trict of  Columbia  the  transportation  and  the  de- 
livery shall  be  by  the  warden  of  the  jail  of  that  dis- 
trict; the  reasonable  actual  expense  of  transporta- 
tion, necessary  subsistence,  and  hire  and  transpor- 
tation of  guards  and  the  marshal,  or  the  warden  of 
the  jail  in  the  District  of  Columbia,  only,  to  be 
paid  by  the  attorney  general,  out  of  the  judiciary 
fund.  But  if,  in  the  opinion  of  the  attorney  gen- 
eral, the  expense  of  transportation  from  any  State, 
Territory,  or  the  District  of  Columbia,  in  which 
there  is  no  penitentiary,  will  exceed  the  cost  of 
maintaining  them  in  jail  in  the  State,  Territory, 
or  the  District  of  Columbia,  during  the  period  of 
their  sentence,  then  it  shall  be  lawful  so  to  confine 
them  therein  for  the  period  designated  in  their 
respective  sentences.  And  the  place  of  imprison- 
ment may  be  changed  in  any  case,  when,  in  the 
opinion  of  the  attorney  general,  it  is  necessary  for 
the  preservation  of  the  health  of  the  prisoner,  or 
when,  in  his  opinion,  the  place  of  confinement  is 
not  sufficient  to  secure  the  custody  of  the  prisoner, 
or  because  of  cruel  or  improper  treatment;  pro- 
vided, however,  that  no  change  shall  be  made  in 
the  case  of  any  prisoner  on  the  ground  of  the  un- 
healthiness  of  the  prisoner,  or  because  of  his  treat- 
ment, after  his  conviction  and  during  his  term  of 
imprisonment,  unless  such  change  shall  be  applied 
for  by  such  prisoner,  or  some  one  in  his  behalf. 


§§  614-615  CKIMINAL  PROCEDUBE.  1344 

(Eev.  Stats,   sec.  5546,  as  amended  by  the  act  of 
July  12,  1876,  19  Stat.  L.  88.) 

Prisoner,  removal  of.— The  power  of  remoxaL 
prisoner  is  in  ttie  hands  of  the  attorney-general,  and 
not  in  the  courts.  (United  States  v.  Greenwald,  64 
Fed.  Rep.  6.) 

§  614.  Attorney  general  to  contract  for  sub- 
sistence, etc. — The  attorney  general  shall  contract 
with  the  managers  or  proper  authorities  having 
control  of  such  prisoners,  for  the  imprisonment, 
subsistence,  and  proper  employment  of  them,  and 
shall  give  the  court  having  jurisdiction  of  such 
offenses  notice  of  the  jail  or  penitentiary  where 
such  prisoners  will  be  confined.  (Eev.  Stats,  sec. 
5547.) 

Subsistence  of  prisoners.— A  State  statute  author- 
izing the  use  of  county  jails  for  the  confinement  of 
United  States  prisoners  on  certain  terms  as  to  charges 
and  fees  is  not  binding  on  the  United  States,  as  sub- 
sistence is  a  matter  of  contract.  (County  of  Lewis 
and  Clarke  v.  United  States,  77  Fed.  Rep.  732.) 

§•615.  Court  may  order  sentence  executed  in 
house  of  correction. — Whenever  any  person  is  con- 
victed of  any  offense  against  the  United  States 
which  is  punishable  by  fine  and  imprisonment,  or 
by  either,  the  court  by  which  the  sentence  is 
passed  may  order  the  sentence  to  be  executed  in 
any  house  of  correction  or  house  of  reformation 
for  juvenile  delinquents  within  the  State  or  dis- 
trict where  such  court  is  held,  the  use  of  which  is 
authorized  by  the  legislature  of  the  State  for  such 
purpose.     (Eev.  Stats,  sec.  5548.) 


1345  CEIMINAL  PROCEDURE.  §§  616   617 

§  616.     Confinement    of    juvenile    offenders. — 

Juvenile  offenders  against  the  laws  of  the  United 
States,  being  under  the  age  of  sixteen  years,  and 
who  may  hereafter  be  convicted  of  crime,  the  pun- 
ishment whereof  is  imprisonment,  shall  be  con- 
fined during  the  term  of  sentence  in  some  house  of 
refuge  to  be  designated  by  the  attorney  general, 
and  shall  be  transported  and  delivered  to  the 
warden  or  keeper  of  such  house  of  refuge  by  the 
marshal  of  the  district  where  such  conviction  has 
occurred;  or  if  such  conviction  be  had  in  the  Dis- 
trict of  Columbia,  then  the  transportation  and  de- 
livery shall  be  by  the  warden  of  the  jail  of  that 
district,  and  the  reasonable  actual  expense  of  the 
transportation,  necessary  subsistence,  and  hire,  and 
transportation  of  assistants  and  the  marshal  or 
warden,  only,  shall  be  paid  by  the  attorney  general 
out  of  the  judiciary  fund.  (Eev.  Stats,  sec. 
5549.) 

§  617.  Attorney  general  to  contract  for  their 
subsistence. — The  attorney  general  shall  contract 
wdth  the  managers  or  persons  having  control  of 
such  houses  of  refuge  for  the  imprisonment,  sub- 
sistence, and  proper  employment  of  all  such  juve- 
nile offenders  and  shall  give  the  several  courts  of 
the  United  States  and  of  the  District  of  Columbia 
notice  of  the  places  so  provided  for  the  confine- 
ment of  such  offenders;  and  they  shall  be  sentenced 
to  confinement  in  the  house  of  refuge  nearest  the 
place  of  conviction  so  designated  by  the  attorney 
general.     (Rev.  Stats,  sec.  5550.) 

Fed.  Pboc  — 113. 


§§618-621  CKIMINAI.  PROCEDURE.  1346 

§  618.  Removal  of  prisoners  in  case  of  contag- 
ion or  epidemic. — The  judge  of  any  district  court, 
within  whose  district  any  contagious  or  epidemic 
disease  shall  at  any  time  prevail,  so  as,  in  his  opin- 
ion, to  endanger  the  lives  of  persons  confined  in 
the  prison  of  such  district,  in  pursuance  of  any 
law  of  the  United  States,  may  direct  the  marshal 
to  cause  the  persons  so  confined  to  be  removed 
to  the  next  adjacent  prison  where  such  disease 
does  not  prevailj  there  to  be  confined  until  they 
may  safely  be  removed  back  to  the  place  of  their 
first  confinement.  Such  removals  shall  be  at  the 
expense  of  the  United  States.  (Rev.  Stats,  sec. 
4800.) 

§  620.  Indictment— Capital  offenses. — No  per- 
son shall  be  prosecuted,  tried,  or  punished  for 
treason  or  other  capital  offense,  willful  murder  ex- 
cepted, unless  the  indictment  is  found  within 
three  years  next  after  such  treason  or  capital  of- 
fense is  done  or  committed.  (Eev.  Stats,  sec. 
1043.) 

§  621.  Indictment — Offenses  not  capital. — ISTo 
person  shall  be  prosecuted,  tried,  or  punished  for 
any  offense  not  capital,  except  as  provided  in  sec- 
tion one  thousand  and  forty-six,  unless  the  indict- 
ment is  found  or  the  information  is  instituted 
within  three  years  next  after  such  offense  shall 
have  been  committed.  But  this  court  shall  not 
have  effect  to  authorize  the  prosecution,  trial,  or 
punishment  for  any  offense  barred  by  the  pro- 
visions of  existing  laws.  (19  U.  S.  Stats.  32;  1 
Sup.  Eev.  Stats.  204;  Eev.  Stats,  sec.  1044.) 


1347  CRIMINAL  PKOCEDURE.  §  621 

Offenses  not  capital. — This  section  applies  to  prose- 
cutions under  statutes  passed  since  its  adoption,  and 
is  general  in  its  nature.  (Adams  v.  Woods,  2  Cranch, 
836;  United  States  v.  Mayo,  1  Gall.  397;  Fed.  Cas.  No. 
15755;  United  States  v.  Brown,  2  Low.  267;  Fed.  Cas. 
No.  14665;  Joiinson  v.  United  States,  3  McLean,  89; 
Fed.  Cas.  No.  7418;  United  States  v.  Ballard,  3  Mc- 
Lean, 469;  Fed.  Cas.  No.  14507;  United  States  v.  Sho- 
rey,  9  Int.  Rev.  Rec.  202;  Fed.  Cas.  No.  16281;  United 
States  V.  Dustin,  15  Int.  Rev.  Rec.  30;  Fed.  Cas.  No. 
15012.)  It  applies  to  offenses  at  common  law  com- 
mitted in  the  District  of  Columbia.  (United  States 
V.  Sla.cum,  1  Cranch  C.  C.  485;  Fed.  Cas.  No.  16311; 
United  States  v.  Porter,  2  Cranch  C.  C.  60;  Fed.  Cas. 
No.  16072;  United  States  v.  Watkins,  3  Cranch  C.  C. 
441 ;  Fed.  Cas.  No.  16649.)  It  runs  from  the  time  of 
the  commission  of  the  offense  to  the  finding  of  the 
indictment  or  filing  of  the  information  (United  States 
V,  Ballard,  3  McLean,  469;  Fed.  Cas.  No.  14507);  and 
that  altliough  a  prior  indictment  was  found  within 
the  three  years,  but  upon  which  a  nol.  pros,  was  en- 
tered. (United  States  v.  Ballard,  3  McLean,  469;  Fed, 
Cas.  No.  14507.)  The  indictment  may  set  forth  the 
true  time  of  the  commission  of  the  offense,  and  any 
facts  which  show  defendant  cannot  avail  himself  of 
the  limitation  (United  States  v.  Watkins,  3  Cranch 
C.  C.  441;  Fed.  Cas.  No.  16649;  United  States  v.  White, 
5  Cranch  C.  C.  368;  Fed.  Cas.  No.  16678);  and  evidence 
may  be  given  even  under  the  general  issue  that  he 
fled  from  justice  to  avodd  the  bar  of  the  stat- 
ute. (United  States  v.  White,  5  Cranch  C.  O.  368; 
Fed.  Cas.  No.  16678.)  The  indictment  will  not  be 
quashed,  although  it  appears  upon  the  record  that  the 
offense  was  committed  more  than  three  years  before 
Itsfinding  (United  States  v.  White,  5  Cranch  0.  C.  368; 
Fed.  Cas.  No.  16678;  Utiited  States  v.  Cook,  17  Wall. 
168);  nor  will  judgment  be  arrested  for  that  reason. 
(United  States  v.  Cook,  17  Wall.  168.)     The  defense 


§621  CRIMINAL  PROCEDURE. 

cannot  be  set  up  by  demurrer.  (United  States  v. 
Cook,  17  Wall.  168;  but  see  contra,  United  States  v. 
Watkins,  3  Cranch  0.  C.  441;  Fed.  Cas.  No.  16649; 
United  States  v.  White,  5  Cranch  C.  C.  368;  Fed.  Cas. 
No.  16678.)  A  party  is  entitled  to  the  benefit  of  the 
limitation  although  the  government  does  not  know 
him  to  be  the  person  who  committed  the  crime 
(United  States  v.  White,  5  Cranch  C.  C.  368;  Fed.  Cas. 
No.  16678),  and  although  he  committed  the  crime  on 
the  high  seas  and  did  not  return  until  the  three  years 
had  expired.  (United  States  v.  Brown.  2  Low.  267; 
Fed.  Cas.  No.  146(15.)  It  is  not  necessary  to  plead  the 
statute  specially;  it  may  be  taken  advantage  of  under 
the  plea  of  not  guilty.  (United  States  v.  Cook,  17 
Wall.  168;  United  States  v.  Fermenting  Tubs,  1  Abb. 
U.  S.  268;  Fed.  Cas.  No.  16296;  United  States  v.  White, 
5  Cranch  C.  C.  368;  Fed.  Cas.  No.  16678;  United  States 
V.  Brown,  2  Low.  267;  Fed.  Cas.  No.  14665;  Parsons 
V.  Hunter,  2  Sum.  419;  Fed.  Cas.  No.  10778.)  If  a 
public  officer  embezzles  public  funds  the  offense  is 
within  the  provisions  of  this  section  (United  States 
V.  Cook,  17  Wall.  168);  but  an  oflcnse  arising  under 
the  revenue  laws  is  not  within  its  provisions  (United 
States  V.  Hirsch,  100  U.  S.  33) ;  but  a  plea  of  the  lapse 
of  three  j'ears  is  good  to  an  indictment  for  a  conspir- 
acy, although  the  overt  act  ueces-sary  to  the  offense 
may  be  one  affecting  the  revenue.  (United  Strifes  v. 
Hirsch,  100  U.  S.  33;  United  States  v.  Blunt,  7  Chic. 
L.  N.  258;  Fed.  Cas.  No.  14615;  but  see  United  States 
V.  Fehrenback,  2  Woods,  175;  Fed.  Cas.  No.  15083; 
United  States  v.  Dustin,  15  Int.  Rev.  Rec.  30;  Fed. 
Cas.  No.  1.5012.)  Fraudulently  procuring  one's  name 
to  be  entered  on  the  pension  roll  is  a  commission  of 
the  offense  every  time  he  claims  his  pension.  (United 
States  V.  Coggin,  3  Fed.  Rep.  492;  9  Biss.  416.)  If  a 
pensioner  makes  demand  on  an  agent  for  his  pension 
more  than  two  years  before  the  prosecution  this  sec- 
tion is  a  uar.     (United  States  v.  Irvine,  98  U.  S.  450.) 


1349  CRIMINAL  PROCEDURE.  §§  622-633 

§  622.  Fleeing  from  justice. — Nothing  in  the 
two  preceding  sections  shall  extend  to  any  person 
fleeing  from  justice.    (Eev.  Stats,  sec.  1045.) 

Fleeing  from,  justice. — Pleeing  from  justice  means 
leaving  one's  home  or  abode  to  avoid  detection  for 
some  ott'ense  against  the  United  States.  (United 
States  V.  O'Brian,  3  Dill.  381;  Fed.  Cas.  No.  1590S.) 
It  is  not  necessary  that  there  should  be  an  intent  to 
avoid  the  justice  of  the  United  States;  but  it  is  suffi- 
cient if  there  is  an  intent  to  avoid  the  justice  of  the 
State  having  criminal  jurisdiction  over  the  same  ter- 
ritory and  the  same  act.  (Streep  v.  United  States, 
160  U.  S.  128.)  After  flight,  an  open  and  public  re- 
turn more  than  three  years  before  indictment  bars 
the  prosecution  (United  States  v.  White,  5  Cranch  C. 
C.  38;  Fed.  Cas.  No.  16675),  either  by  leaving  the  juris- 
diction or  concealing  one's  self  vv^ithin  it.  (United 
States  V.  White.  5  Cranch  C.  C.  38;  Fed.  Cas.  No. 
16675.)  If  one  flees  to  avoid  punishment  the  statute 
is  no  bar,  though  he  did  not  flee  to  avoid  process. 
(United  States  v.  White,  5  Cranch  C.  C.  38;  Fed.  Cas. 
No.  16675;  United  States  v.  White,  5  Cranch  C.  C.  116; 
Fed.  Cas.  No.  16677.)  Continuing  on  a  cruise  after 
commission  of  the  crime  is  not  a  fleeing  from  justice. 
(United  States  v.  Brow^n,  2  Low.  267;  Fed.  Cas.  No. 
14665.) 

§  623.     Crimes  under  the  revenue    laws. — No 

person  shall  be  prosecuted,  tried,  or  punished  for 
any  <;rime  arising  under  the  revenue  laws,  or  the 
slave-trade  laws  of  the  United  States,  unless  the 
indictment  is  found  or  the  information  is  insti- 
tuted within  five  years  next  after  the  committing 
of  such  crime.     (Eev.  Stats,  sec.  1046.) 

OfEenses  ag'ainst  revenue  laws. — This  section  does 
not  embrace  every  law  of  fines  or  forfeiture.     (United 


§  624  CRIMINAL  PROCEDURE.  1350 

States  Y.  Mayo,  1  Gall.  397;  Fed.  Cas.  No.  1575.5.) 
The  term  "revenue  laws"  does  not  mean  laws  which, 
by  Indirect  operation,  may  conduce  to  the  public 
wealth,  (United  States  v.  Norton,  91  U.  S.  566; 
United  States  v.  Mayo,  1  Gall.  397;  Fed.  Cas.  No. 
15755.)  But  it  applies  to  special  acts  violating  laws 
made  to  protect  the  revenue.  (United  States  v. 
Hirsch,  TOO  U.  S.  33.)  As  malting  a  false  entry  of 
goods  by  a  fraudulent  invoice  and  false  classification. 
(United  States  v.  Hirsch,  100  U.  S.  33.)  Or  to  a  crime 
created  by  a  statute  relating  to  the  internal  revenue. 
(United  States  v.  Wright,  11  Int.  Rev.  Rec.  35;  Fed. 
Cas.  No.  16770;  United  States  v.  Dustin,  15  Int.  Rev. 
Rec.  30;  Fed.  Cas.  No.  15012.)  Nor  is  the  act  to  estab- 
lish a  monej'-order  system.  (United  States  v.  Norton, 
91  U.  S.  566.)  Offenses  against  the  customs  are 
crimes  punishable  by  fine  and  imprisonment,  forfeit- 
ures carried  into  effect  by  seizure,  condemnation  and 
sale,  and  pecuniary  penalties  recoverable  by  action. 
(In  re  Landsberg,  11  Int.  Rev.  Rec.  150;  Fed.  Cas.  No. 
8041.)  But  not  if  a  statute  provides  for  fine  or  im- 
prisonment, or  both,  at  the  discretion  of  the  court. 
(In  re  Landsberg,  11  Int.  Rev.  Rec.  150;  Fed.  Cas.  No. 
8041;  United  States  v.  Shorey,  9  Int.  Rev.  Rec.  202; 
Fed.  Cas.  No.  16281;  McGlinchy  v.  United  States,  4 
Cliff.  312;  Fed.  Cas.  No.  8S03;  Perkins  v.  United 
States,  4  Cliff.  321;  Fed.  Cas.  No.  10990;  United  States 
V.  One  Oil  Fainting,  31  Fed.  Rep.  881. 

§  624.  Penalties  and  forfeitures  under  laws  of 
United  States. — No  suit  or  prosecution  for-  any 
penalty  or  forfeiture,  pecuniary  or  otherwise,  ac- 
cruing under  the  laws  of  the  United  States,  shall 
be  maintained,  except  in  cases  where  it  is  other- 
wise specially  provided,  unless  the  same  is  com- 
menced Avithin  five  years  from  the  time  when  the 
penalty  or  forfeiture  accrued;    provided,  that  the 


I 


1351  CRIMINAI,  PBOCEDTJEE.  §  624 

person  of  the  offender,  or  the  property  liable  for 
such  penalty  or  forfeiture,  shall,  within  the  same 
period,  be  found  within  the  United  States;  so  that 
the  proper  process  therefor  may  be  instituted,  and 
served  against  such  person  or  property.  (Eev. 
Stats,  sec.  1047.) 

Note. — ft  applies  equally  to  an  action  of  debt  to 
recover  a  penalty.  (Adams  v.  Woods,  2  Cranch,  336; 
Stimpson  v.  Pond,  2  Curt.  502;  Fed.  Cas.  No.  134-5.5.) 
It  applies  to  civil  actions  and  not  to  prosecutions  for 
the  crime.  (United  States  v.  Brown,  2  Low.  267; 
Fed.  Cas.  No.  14665.)  It  does  not  apply  to  actions 
on  a  bond,  or  for  the  penalty  named  in  the  bond. 
(Raymond  v.  United  States,  14  Blatchf.  51;  Fed.  Cas. 
No.  11596.)  A  State  statute  cannot  bar  an  action  aris- 
ing under  an  act  of  Congress.  (McGlinchy  v.  United 
States,  4  ClifC.  312;  Fed.  Cas.  No.  8803;  Perkins  v. 
United  States,  4  ClifC.  321;  Fed.  Cas.  No.  10990.) 
"Penalty"  is  a  fixed  pecuniary  mulct  incurred  for  vio- 
lation of  a  law.  (In  re  Landsberg,  11  Int.  Rev.  Rec. 
150;  Fed.  Cas.  No.  8041.)  And  the  limitation  appliess 
to  suits  to  recover  such  penalty,  as  well  as  fines  and 
forfeitures  accruing  under  the  laws  of  the  United 
States,  and  those  accruing  to  the  United  States  unless 
specifically  excepted  (United  States  v.  Maillard,  4 
Ben.  459;  Fed.  Cas.  No.  15709;  In  re  Landsberg,  11 
Int.  Rev.  Rec.  150;  Fed.  Cas.  No.  8041),  whether  the 
action  be  in  rem  or  in  personam  (The  Boston,  3  Fed. 
Rep.  807);  as  for  refusal  of  a  master  to  deposit  papers 
with  the  consul  (Parsons  v.  Hunter,  2  Sum.  419;  Fed. 
Cas.  No.  10778),  and  a  fraudulent  concealment  of  the 
cause  of  action  will  not  prevent  the  running  of  the 
statute.  (United  States  v.  Maillard,  4  Ben.  459;  Fed. 
Cas.  No.  15709.)  Five  years  from  the  time  "when  the 
penalty  or  forfeiture  accrued"  is  the  limitation  for 
actions  of  debt  for  penalties.     (Hatch  v.  The  Boston, 


§§  625-626  CRIMINAL  PROCEDURE.  1352 

3  Fed.  Rep.  810.)  A  statute  imposing  a  penalty  for 
the  master's  refusal  or  neglect  to  deposit  papers  with 
the  consul  is  not  a  revenue  law.  (Parsons  v.  Hunter, 
2  Sum.  419;  Fed.  Cas.  No.  10778.)  Under  this  clause 
a  right  to  forfeit  the  charter  of  a  national  banli  for 
violation  of  tlie  provisions  of  U.  S.  Kev.  Stat.,  tit.  02, 
is  limited  to  five  years.  (Welles  v.  Graves,  7  K.  R.  & 
Corp.  L.  J.  392;  41  Fed.  Rep.  459.) 

§  625.  Under  customs  revenue  law. — That  no 
suit  or  action  to  recover  any  pecuniary  penalty  or 
forfeiture  of  property  accruing  under  the  cus- 
toms revenue  laws  of  the  United  States  shall  be 
instituted  unless  such  suit  or  action  shall  be  com- 
menced within  three  years  after  the  time  when 
such  penalty  or  forfeiture  shall  have  accrued; 
provided,  that  the  time  of  the  absence  from  the 
United  States  of  the  person  subject  to  such  pen- 
alty or  forfeiture,  or  of  any  concealment  or  ab- 
sence of  the  property,  shall  not  be  reckoned  with- 
in this  period  of  limitation.  (Eev.  Stats,  sec. 
1047.) 

i:;  626.  Parties  beyond  reach  of  process  during 
the  rebellion. — In  all  cases  where,  during  the  late 
rebellion,  any  person  could  not,  by  reason  of  re- 
sistance to  the  execution  of  the  laws  of  the  United 
States,  or  of  the  interruption  of  the  ordinary 
course  of  judicial  proceedings,  be  served  \nth 
process  for  the  commencement  of  any  action,  civil 
or  criminal,  which  had  accrued  against  him,  the 
time  during  which  such  person  was  beyond  the 
reach  of  legal  process  shall  not  be  taken  as  any 
part  of  the  time  limited  by  law  for  the  commence- 
ment of  such  action.     (Rev.  Stats,  sec.  1048.) 


3353  CRIMINAL,  PROCEDURE.  §  626 

Suspension  of  operation  of  statute. — A  State  law 
may  suspend  the  operation  of  the  statute  for  a  longer 
period.  (Graydon  v.  Sweet.  1  Woods,  418;  Fed.  Cas. 
No.  5733.)  This  statute  is  not  a  statute  of  limitations, 
not  specTfying  the  time  in  which  action  may  be 
brought.  (Graydon  v.  Sweet,  1  Woods,  418;  Fed.  Cas. 
No.  5733.)  If  defendant  was  where  process  could  be 
served  on  him,  the  limitation  in  other  cases  applies. 
(Britton  v.  Butler.  11  Blatchf.  350;  Fed.  Cas.  No.  1994.; 
The  suspension  of  the  statute  ceased  a  reasonable 
time  after  restoration  of  peace.  (United  States  v. 
Muhlenbrink,  1  Woods,  5G9;  Fed.  Cas.  No.  15831.) 
All  the  time  must  be  deducted  during  which  suits 
could  not  be  prosecuted,  by  resistance  to  laws  or  in- 
terruption to  judicial  proceedings,  whether  before  or 
after  its  passage.  (United  States  v.  Wiley,  11  Wall. 
508.)  It  does  not  apply  between  persons  who  resided 
in  the  Confederate  States.  (Lockhart  v.  Horn,  1 
Woods,  628;  Fed.  Cas.  No.  8445.) 


§§  637-628  COUET  of  claims.  1354 


CHAPTER  XXIII. 

COUKT    OF    CLAIMS— OKQANIZATIOW    AND    SESSIONS. 

§  627.    Judges, 

§  628.     Seal. 

§  629.     Court-rooms,  etc.,  how  provided. 

§  630.     Sessions — Quorum. 

§  631.     Officers  of  the  court. 

§  632.     Salaries  of  clerks,  bailiff,  and  messenger. 

§  633.     Clerk's  bond. 

§  634.     Contingent  fund. 

§  635.     Reports  to  Congress,  copies  for  departments, 

etc. 
§  63G.     Members  of  Congress  not  to  practice  in  the 

court. 

§  627.  Judges. — The  court  of  claims,  estab- 
lished by  the  act  of.  February  twenty-four,  eigh- 
teen hundred  and  fifty-live,  shall  be  continued. 
It  shall  consist  of  a  chief  justice  and  four  judges, 
who  shall  be  appointed  by  the  President,  by  and 
with  the  advice  and  consent  of  the  Senate,  and 
hold  their  offices  during  good  behavior.  Each 
of  them  shall  take  an  oath  to  support  the  con- 
stitution of  the  United  States,  and  to  discharge 
faithfully  the  duties  of  his  office,  and  shall  be  en- 
titled to  receive  an  annual  salary  of  four  thousand 
five  hundred  dollars,  payable  quarterly  from  the 
treasury.    (Rev.  Stats,  sec.  1049.) 

§  628.  Seal. — The  court  of  claims  shall  have 
a  seal,  with  such  device  as  it  may  order.  (Rev. 
Stats,  sec.  1050.) 


1.355  COUKT  OF  CLAIMS.  §§  629-631 

§  629.     Courtrooms,     etc.,    how    provided. — It 

shall  be  the  duty  of  the  speaker  of  the  House  of 
Eepresentatives  to  approjDiiate  such  rooms  in  the 
Capitol,  at  Washington,  for  the  use  of  the  court 
of  claims,  as  may  be  necessary  for  their  accommo- 
dation, unless  it  appears  to  him  that  such  rooms 
cannot  be  so  appropriated  without  interfering  with 
the  business  of  Congress.  In  that  case  the  court 
shall  procure,  at  the  city  of  Washington,  such 
rooms  as  may  be  necessary  for  the  transaction  of 
their  business.    (Eev.  Stats,  sec.  1051.) 

§  630.  Sessions  —  ftuorum. — The  court  of 
claims  shall  hold  one  annual  session,  at  the  city 
of  Washington,  beginning  on  the  first  Monday  in 
December,  and  continuing  as  long  as  may  be  nec- 
essary for  the  prompt  disposition  of  the  business 
of  the  court.  And  any  three  judges  of  the  court 
of  claims  shall  constitute  a  quorum;  provided,  that 
the  concurrence  of  three  judges  shall  be  necessary 
to  the  decision  of  any  case.  (Eev.  Stats,  sec.  1052; 
18  U.  S.  Stats.  252.) 

§  631.  Officers  of  the  court. — The  said  court 
shall  appoint  a  chief  clerk,  an  assistant  clerk,  if 
deemed  necessary,  a  baililf,  and  a  messenger.  The 
clerks  shall  take  an  oath  for  the  faithful  discharge 
of  their  duties,  and  shall  be  under  the  direction  of 
the  court  in  the  performance  thereof;  and  for 
misconduct  or  incapacity  they  may  be  removed  by 
it  from  office;  but  tlie  court  shall  report  such  re- 
movals, with  the  cause  thereof,  to  Congress,  if  in 
session,  or  if  not,  at  the  next  session.     The  bailiff 


§§  632-635  COURT  of  claims.  1356 

shall  hold  his  office  for  a  term  of  four  years,  un- 
less sooner  removed  by  the  court  for  cause.  (Rev. 
Stats,  sec.  1053.) 

§  632.  Salaries  of  clerks,  etc. — The  salary  of 
the  chief  clerk  shall  be  three  thousand  dollars  a 
year,  of  the  assistant  clerk,  two  thousand  a  year, 
of  the  bailiff,  fifteen  hundred  dollars  a  year,  and 
of  the  messenger  eight  hundred  and  forty  dollars 
a  year,  payable  quarterly  from  the  treasury.  (Rev. 
Stats,  sec.  1054.) 

§  633.  Clerk's  bond.— The  chief  clerk  shall 
give  bond  to  the  United  States  in  such  form,  and 
vrith  such  security  as  shall  be  approved  by  the  sec- 
retary of  the  treasury.     (Rev.  Stats,  sec.  1055.) 

§  634.  Contingent  fund. — The  said  clerk  sliall 
have  authority,  when  he  has  given  bond  as  pro- 
vided in  the  preceding  section,  to  disburse,  un- 
der the  direction  of  the  court,  the  contingent 
fund  which  may  from  time  to  time  be  appropriated 
for  its  use;  and  his  accounts  shall  be  settled  by  the 
proper  accounting  officers  of  the  treasury  in  the 
same  way  as  the  account  of  other  disbursing  agents 
of  the  government  are  settled.  (Rev.  Stats,  sec. 
1056.) 

^  635.  Reports  to  Congress,  copies  for  depart- 
ments, etc. — On  the  first  day  of  every  December 
session  of  Congress,  the  clerk  of  the  court  of  claims 
shall  trnnsmit  to  Congress  a  full  and  complete 
statement  of  all  the  judgments  rendered  by  the 


1357  COURT   OF    CLAIMS.  ^  636 

court  during  the  previous  year,  stating  the 
amounts  thereof,  and  the  parties  in  whose  favor 
they  were  rendered,  together  with  a  brief  synop- 
sis of  the  nature  of  the  claims  upon  which  they 
were  rendered.  And  at  the  end  of  every  term  of 
the  court  he  shall  transmit  a  copy  of  its  decisions 
to  the  heads  of  departments;  to  the  solicitor,  the 
comptrollers,  and  the  auditors  of  the  treasury;  to 
the  commissioners  of  the  general  landoffice  and 
of  Indian  affairs;  to  the  chiefs  of  bureaus;  and  to 
other  officers  charged  with  the  adjustment  of 
claims  against  the  United  States.  (Eev.  Stats,  sec. 
1057.) 

§  636.  Members  of  Congress. — ^Members  of 
either  house  of  Congress  shall  not  practice  in  the 
court  of  claims.    (Eev.  Stats,  sec.  1058.) 

Fed.  Pboc— 114. 


COUBT  OF  CLAIMS— JUKISDICTION.  135S 


CHAPTER  XXIV. 

COURT  OF  CLAIMS — JURISDICTION. 

§  037.  Jurisdiction— Suits  against  government— Pro- 
viso—"War"  and  rejected  claims  excepted. 

§  638.  Set-offs,  counterclaims,  etc.— Proviso— Limi- 
tation. 

§  639.  District  and  circuit  courts  to  have  concurrent 
jurisdiction  with  court  of  claims— Limit. 

§  GiO.  Petitions  for  release  from  official  bond— Judg- 
ment— Limitation. 

§  641.     Attorney-general  to  represent  United  States. 

§  642.     Payment,  discharge  of  obligation. 

§  643.    Jurisdiction  and  procedure. 

§  644.     Petition  for  settlement  of  claims. 

§  645.  Service— Defense  — Proviso  — Proceedings  on 
failure  to  answer. 

§  646.     Findings  of  court. 

§  647.     Interested  parties  may  testify. 

§  648.    Appeals  aud  writs  of  error— Procedure. 

§  649.  Judgments  adverse  to  United  States  to  be  cer- 
titied  to  attorney-general — Appeal — Proviso 
— Limitation— Interest 

§  650. .  Heport  to  Congress. 

§  651.    Claims  refened  by  departments. 

§  652.  Claims  referred  uuder  "Bowman  Act"— Judg- 
ment. 

§  653.  lieference  of  claims  pending  in  Congress— Re- 
port to  Congress. 

§  654.     Costs. 

§  655.     Inconsistent  laws  repealed. 

§  656.  Claims  allowed  by  the  first  auditor  and  com- 
missioner of  customs. 

§  657.     Western  Cherokee  Indian  claims. 


1359  COUKT  OF  CLAIMS— JURISDICTION. 

§  658.  Shawnee  and  Delaware  Indian  claims. 

§  659.  Private  claims  in  Congress. 

§  660.  Judgments  for  set-off  or  counterclaim. 

§  661.  Decree  on  accounts  of  paymasters,  etc. 

§  662.  Claims  referred  by  department. 

§  663.  Procedure  in  cases  transmitted  by  depart- 
ments. 

§  664.  Judgments  in  cases  transmitted  by  depart- 
ments, how  paid. 

§  665.  Judgments  and  claims  subject  to  offsets. 

§  666.  Claims  growing  out  of  treaties. 

§  667.  Claims  pending  in  other  courts. 

§  668.  Aliens. 

§  665).  Limitations. 

§  670.  Rules  of  practice— Contempts. 

§  671.  Oaths  and  acknowledgments. 

§  672.  Petition. 

§  673.  Petition,  when  dismissed. 

§  674.  Burden  of  proof  and  evidence  as  to  loyalty. 

§  675.  Commissioners  to  take  testimony. 

§  676.  Power  to  call  upon  departments  for  informa- 
tion. 

§  677.  When  testimony  not  to  be  taken. 

§  678.  Witnesses  not  excluded. 

§  679.  Examination  of  claimant. 

§  680.  Testimony  taken  where  deponent  resides. 

§  681.  Witnesses,  how  compelled  to  attend. 

§  682.  Cross-examination. 

§  683.  Witnesses,  how  sworn. 

§  684.  Fees  of  commissioner. 

§  685.  Claims  forfeited  for  fraud. 

§  686.  New  trial  on  motion  of  claimant. 

§  687.  New  trial  on  motion  of  United  States. 

§  688.  Payment  of  judgments. 

§  689.  Interest. 

§  690.  Interest  on  claims. 

§  691.  Payment  of  judgment  a  full  discharge,  etc. 

§  692.  nnal  judgment  a  bar. 


COURT  OF  CLAIMS— JURISDICTION.  1860 

§  693.  Claims,  etc.,  pending  before  CongresB,  when 
to  be  referred  to  court  of  claims. 

§  694.  Claims  pending  in  executive  department, 
when  transmitted,  etc. 

§  695.     Claims  not  within  jurisdiction  of  court. 

§  696.  Claims  for  supplies,  etc.,  furnished  for  sup- 
pression of  the  rebellion. 

§  697.     Defense,  etc.,  for  the  United  States. 

§  698.     Parties  in  interest  may  testify,  etc. 

§  699.  Heports  of  court  may  be  continued,  etc.,  for 
action. 

§  700.  Claims  of  American  citizens  for  spoliations 
committed  by  the  French. 

§  701.     Court  to  make  needful  rules. 

§  702.  Court  to  determine  validity,  amount,  owner- 
ship of  claims,  etc.— Proviso  as  to  testimony 
and  law,  and  report  conclusions. 

§  703.  Attorney  general  to  be  notified  of  all  petitions 
presented,  and  resist  claims  by  legal  de- 
fenses. 

§  704.  Secretary  of  state  to  procure  evidence  and 
documents  from  abroad. 

§  705.  Court  to  report  to  Congress— Claims  barred  if 
not  presented  in  two  years. 

§  706.    Claims  arising  from  Indian  depredations. 

§  707.     Examined  claims. 

§  708.     Offsets  and  counterclaims. 

§  709.  Limitations  waived — Provisos— Claims  not  to 
be  considered. 

§  710.     I'etltion,  etc. 

§  711.  Service— I'etition—Attorney-genoral  to  defend- 
— I'rovisos — Proceedings  on  his  failure  to  de- 
fend—Special attorney  for  Indians. 

§  712.  Evidence— Provisos— Priority  of  claims,  re- 
opening cases,  etc. 

§  713.     Rules  for  talcing  testimony,  etc. 

§  714.  Judgment  to  be  charged  against  tribe— Mode 
of  payment. 


1361  COURT  OF   CLAIMS— JURISDICTION.  §  637 

§  715.    Judgments  final— Appeal. 

§  716.     Lists  of  judgments  to  be  sent  to  Congress. 

§  717.  Bales,  attorneys'  contracts,  etc.,  declared  void 
— Warrants  payable  to  claimant,  etc.,  allow- 
ance to  attorneys— Maximum. 

§  718,    Appeal. 

§  719.     All  papers,  etc.,  to  be  furnislied  the  court. 

§  720.  Additional  assistant  attorney-general  to  be 
appointed. 

§  721.  Investigation  under  present  laws  to  cease — 
Balances  to  be  covered  in. 

§  722.  Court  to  determine  claims  of  Pottawatomiea 
for  land  purchased. 

§  723.    Private  claim  referred. 

§  637.  Jurisdiction  —  Suits  against  govern- 
ment.— The  court  of  claims  shall  have  jurisdiction 
to  hear  and  determine  the  following  matters: 

First.  All  claims  founded  upon  the  constitu- 
tion of  the  United  States,  or  any  law  of  Congress, 
,  except  for  pensions,  or  upon  any  regulation  of 
an  executive  department,  or  upon  any  contract, 
expressed  or  implied,  with  the  government  of  the 
United  States,  or  for  damages,  liquidated  or  un- 
liquidated, in  cases  not  sounding  in  tort,  in  re- 
spect of  which  claims  the  party  would  be  entitled 
to  redress  against  the  United  States  either  in  a 
court  of  law,  equity,  or  admiralty,  if  the  United 
States  were  suable;  provided,  Tioivever,  that  nothing 
in  this  section  shall  be  construed  as  giving  to  either 
of  the  courts  herein  mentioned  jurisdiction  to  hear 
and  determine  claims  growing  out  of  the  late 
civil  war,  and  commonly  known  as  "war  claims," 
or  to  hear  and  determine  other  claims,  which 
have  heretofore  been  rejected,  or  reported  on  ad- 


§  637  COURT  OF   CLAIMS— JURISDICTION.  1362 

versely  by  any  courts,  department,  or  commission 
authorized  to  hear  and  determine  the  same.  (Eev. 
Stats,  sec.  1059,  as  amended;  24  U.  S.  Slats.  505, 
sec.  1,  cl.  1.) 

Jurisdiction  in  general. — The  court  of  claims  is  not 
a  local  but  a  national  court,  with  jurisdiction  through- 
out the  United  States.  (King's  Case,  27  Ct.  of  Cl. 
529.)  Where  Congress  creates  a  class  of  claims  and 
provides  a  jurisdiction  it  is  exclusive.  (Foster's  Case, 
32  Ct.  of  Cl.  170.)  Conuress  can  confer  upon  the  court 
of  claims  power  not  strictly  judicial.  (Westei*n  Cher- 
okee Indians'  Case,  27  Ct.  of  Cl.  1.)  The  court  of 
claims  has  no  general  jurisdiction  over  claims  against 
the  United  States;  it  can  take  cognizance  of  only 
those  matters  which  by  the  terms  of  some  act  of 
Congress  are  committed  to  it.  (Johnson  v.  United 
States.  IdO  U.  S.  546.)  Where  Congress  has  provided 
a  system  adequate  to  the  investigation  and  recovery 
of  legal  claims,  and  has  intrusted  specified  executive 
or  other  officers  with  a  judicial  discretion,  such 
claims  cannot  be  enforced  in  the  court  of  claims 
(Boughton  V.  United  States,  12  Ct.  of  Cl.  3.30);  and  if 
a  claimant  institutes  proceedings  without  presenting 
his  claim  to  an  executive  department,  he  may  be  re- 
quired to  do  so  before  relief  will  be  granted  (Sweeney 
v.  United  States,  5  Ct.  of  Cl.  28.5);  but  he  cannot  be 
required  so  to  do  before  filing  his  petition.  (Clyde  v. 
United  States,  13  Wall.  38;  but  see  Calkins  v.  United 
States,  1  Ct.  of  Cl.  382.)  If  the  government  assumes 
to  pay  a  certain  claim,  and  provides  a  specific  tribunal 
for  the  ascertainment  thereof,  the  claimant  cannot 
prosecute  in  the  court  of  claims  after  the  decision  of 
that  tribunal.  (Meade  v.  U.  S.,  9  Wall;  691.)  Where 
the  government  recognizes  an  assignment  of  the 
claim,  the  parties  to  the  agreement  and  those  claiming 
under  them  cannot  set  up  that  the  contract  was  not 
assignable.     (Goodman   v.    Niblack,    102    U.    S.    556.) 


1363  COURT   OF  CLAIMS — JURISDICTION.  §  637 

The  court  of  claims  lias  no  equitable  jurisdiction. 
(Bonner  v.  United  Slates.  9  Wall.  156.)  An  action  to 
implead  the  United  States  and  a  State  cannot  be  pros- 
ecuted in  the  court  of  claims.  (Mil.  &  R.  R.  Canal  Co. 
V.  United  States.  1  Ct.  of  CI.  187.)  Plaintiff,  who  has 
insiltuted  proceedings  in  the  court  of  claims  to  re- 
cover for  lands  condemned  for  public  purposes,  can- 
not then  be  heard  to  say  that  the  law  establishing  the 
court  is  unconstitutional  because  it  takes  away  the 
right  of  trial  by  jury  and  establishes  a  court  unknown 
to  the  Constilution.  ((ire;it  Falls  Manuf.  Co.  v.  At- 
torney-general, 124  U.  S.  581;  affirming  S.  C.  25  Fed. 
Rep.  521.)  The  jurisdiction  of  the  court  of  claims  over 
cases  refen-ed  to  it  by  either  house  of  Congi'ess  is 
subject  to  prorisions  of  general  statutes  of  limitation 
regulating  that  jurisdiction.  (Ford  v.  United  States, 
116  U.  S.  213.)  This  court  has  jurisdiction  of  an  action 
by  a  State  against  the  United  States,  for  a  demand 
arising  upon  an  act  of  Congress.  (United  States  v. 
Louisiana.  123  U.  S.  32.)  The  court  of  claims  has 
not  jurisdiction  of  a  suit  in  equity  to  set  aside  a  sale 
of  land  to  the  United  States  on  the  gi-ound  that  it 
was  in  fraud  of  the  rights  of  the  present  claimants. 
(Jackson's  Case,  27  Ct.  of  CI.  74.)  Where  the  gov- 
ernment has  taken  property  avowedly  as  its  own  the 
court  of  claims  has  no  jurisdiction.  (Merriam's  Case, 
29  Ct.  of  CI.  250.)  A  claim  before  the  Southern 
claims  commission,  prosecuted  only  by  ex  parte  affi- 
davits, is  excluded  from  the  jurisdiction  of  the  court 
of  claims.  (Duplantier's  Case,  27  Ct.  of  CI.  323.) 
When  a  citizen  insists  upon  a  recognition  of  a  claim, 
he  imposes  a  legal  obligation  upon  himself  to  become 
subject  to  the  jurisdiction  of  such  court  as  Congress 
may  empower  to  adjudicate  it.  (La  Abra  Case,  29 
Ct.  of  CI.  432.)  The  court  of  claims  has  jurisdiction 
to  recover  a  drawback  on  exported  sugar.  (Durant'a 
Case,  28  Ct.  of  CI.  356.)  An  act  of  Congress  provid- 
ing a  method  of  adjusting  a  claim,  if  the  claimant  so 


§  637  COURT  OF  CLAIMS— JURISDICTION.  1364 

desire,  without  a  suit,  does  not  deprive  the  court  of 
claims  of  its  jurisdiction  of  the  claim,  if  within  its 
general  jurisdiction.  (Smithmeyer  v.  United  States, 
147  U.  S.  342.)  The  jurisdiction  of  the  court  of  claims 
to  proceed  further  in  a  case  founded  upon  a  statute 
is  taken  away  by  the  repeal  of  the  act  after  a  reversal 
of  the  judgment  of  the  court  and  the  remanding  of 
the  case  for  further  proceedings.  (In  re  Hall, 
167  IT.  S.  38.)  The  refusal  of  the  court  to  approve 
the  accovmt  of  a  commissioner  is  no  bar  to  an  action 
therefor  in  the  court  of  claims,  although  such  refusal 
may  be  a  matter  for  consideration  in  respect  at  least 
to  the  good  faith  of  the  transaction.  (Southworth  v. 
United  States,  151  U.  S.  179.) 

Law  of  Congress.— A  claim  founded  on  a  law  of 
Congress  may  be  prosecuted  in  the  court  of  claims. 
(Alive  V.  United  States,  1  Ct.  of  CI.  233;  Bogert 
V.  United  States,  3  Ct.  of  CI.  18.)  An  officer 
may  prosecute  a  claim  to  recover  salary  allowed  by 
act  of  Congress.  (Moore  v.  United  States,  4  Ct.  of 
CI.  139.)  The  owner  of  bonds  assumed  by  the  United 
States  may  maintain  an  action  thereon  in  the  court 
of  claims  (Morrell  v.  U.  S.,  7  Ct.  of  CI.  421);  but  a  per- 
son who  has  attended  as  a  witness  before  either  house 
of  Congi'ess cannot  prosecute  an  action  to  recover  com- 
pensation. (Lilley  v.  U.  S.,  14  Ct.  of  CI.  539.)  So  a 
pension  agent  cannot  prosecute  when  there  is  no  pro- 
vision of  law  for  his  compensation.  (Kapp  v.  U.  S., 
Dev.  Ct.  Cl.  132.)  Although  an  unauthorized  purchase 
is  ratified  by  Congress,  yet  an  action  in  the  court  of 
claims  for  rent  from  time  of  purchase  to  time  of 
ratification  cannot  be  maintained.  (Carpenter  v.  U. 
S.,  17  Wall.  489;  S.  C,  6  Ct.  of  Cl.  18.)  So  if  the 
United  States  take  possession  of  land,  under  an 
Indian  treaty,  and  as  trustee  for  the  Indians,  the 
owner  cannot  prosecute  an  action  to  recover  com- 
pensation in  court  of  claims.     (Langford  v.  U.  S..  12 


1365  COURT  OF  CLAIMS— JURISDICTION.  §  637 

Ct.  of  CI.  338.)  Where,  by  an  act  of  Congress,  the 
secretary  of  the  treasury  is  required  to  pay  a  cer- 
tain claim  against  the  United  States,  and  no  discre- 
tion in  the  premises  is  vested  In  hijn,  the  claimant 
is  entitled  to  payment,  and  no  suit  lies  to  recover  back 
the  amount  when  paid,  on  the  ground  of  mistake,  un- 
less Congress  abrogates  the  law  under  which  payment 
was  made.  (United  States  v.  Price,  116  U.  S.  43.) 
Neither  the  court  of  claims  nor  the  supreme  court 
of  the  United  States  can  determine  any  claim  against 
the  United  States,  except  in  cases  defined  by  Con- 
gress. (United  States  v.  Gleeson,  124  U.  S.  255;  Do 
Groot  V.  United  States,  5  Wall.  419.)  Claims  against 
or  liens  upon  property  of  the  United  States  are  in- 
capable of  enforcement,  except  when  such  property 
becomes  subject  to  the  control  of  the  courts.  (The 
Siren  v.  United  States,  7  Wall.  152.)  The  court  of 
claims  has  jurisdiction  of  an  action  by  a  state  against 
the  United  States  for  a  demand  arising  upon  an  act 
of  Congress.  (United  States  v.  Louisiana,  123  U.  S. 
32.) 

Revenue  Laws. — An  ofHcer  of  the  internal  revenue 
may  prosecute  a  claim  to  recover  his  salary,  (Patton 
V.  U.  S.,  7  Ct.  of  CI.  362.)  An  informer  may  prose- 
cute his  claim  to  recover  his  share  of  a  forfeiture 
(Shelton  v.  U.  S.,  8  Ct.  of  CI.  487),  but  not  if  the  sec- 
retary of  the  treasury  has  decided  against  his  claim 
(Ramsey  v.  U.  S.,  14  Ct.  of  CI.  367);  but  if  the  money 
has  been  conveyed  into  the  treasury,  he  may  prose- 
cute an  action  to  recover  his  share.  (Bradley  v.  U. 
S.,  12  Ct.  of  CI.  578.)  An  importer  cannot  prosecute 
to  recover  money  paid  as  a  duty  on  imported  goods, 
although  the  assessment  was  illegal  (Nichols  v. 
United  States.  7  Wall.  122;  Doherty  v.  U.  S.,  6  Ct.  of 
CI.  901;  De  Cells  v.  U.  S.,  13  Ct.  of  CI.  117);  but  he 
may  prosecute  to  recover  money  deposited  by  him  in 
excess  of  the  duties  on  goods  received.     (Broulatour 


i  637  COURT  OF  CLAIMS— JURISDICTION.  1366 

V.  U.  S.,  7  Ct.  of  CI.  555.)  A  manufacturer  who  has 
paid  the  tax  imposed  by  the  internal  revenue  cannot 
prosecute  to  recover  the  drawback  allowed  upon  ex- 
portation of  the  goods  (Portland  Co,  v.  U.  S.,  5  Ct.  of 
CI.  441);  a  manufacturer  of  matches  may  prosecute  to 
recover  the  commission  on  stamps.  (Daily  v.  U.  S., 
7  Ct.  of  CI.  383.)  A  distiller  cannot  prosecute  to  re- 
cover an  allowance  for  lealvage  (Turner  v.  U.  S.,  9  Ct. 
of  CI.  307 j;  but  a  brewer  may  maintain  an  action  for 
an  excess  on  the  payment  of  a  special  tax.  (U.  S.  v. 
Kaufman,  9G  U.  S.  567;  U.  S.  v.  Real  Est.  Sav.  Bk., 
104  U.  S.  728.)  A'  person  who  never  attempts  to  per- 
form his  contract  cannot  prosecute  a  claim  against 
the  United  States  upon  the  ground  that  a  different 
mode  of  inspection  was  adopted  after  the  making  of 
the  contract.  (Spicer  v.  U.  S.,  1  Ct.  of  CI.  316.)  The 
court  of  claims  has  jurisdiction  of  a  petition  by  an 
assessor  of  internal  revenue  to  recover  money  de- 
posited by  him  to  secure  the  compromise  of  a  prosecu- 
tion, if  the  compromise  is  rejected,  and  the  money 
conveyed  into  the  treasury.  (Boughton  v.  U.  S.,  12 
Ct.  of  CI.  330.)  An  exporter  entitled  to  a  drawback 
may  maintain  suit  therefor.  (Campbell  v.  U.  S.,  107 
U.  S.  407.)  The  allowance,  by  the  commissioner  of  in- 
ternal revenue,  of  a  claim  for  taxes  illegally  or  er- 
roneously collected,  may  be  used  as  the  basis  of  an 
action  in  the  court  of  claims.  (U.  S.  v.  Real  Estate 
Sav.  Bank  of  Pittsburg,  104  U.  S.  728;  see  Campbell 
V.  United  States,  107  U.  S.  407.) 

Department  regulations. — "Regulations  of  an  ex- 
ecutive dei)artnient"  describe  rules  and  regulations 
made  by  the  head  of  the  department,  under  an  act  of 
Congress,  and  an  order  assigning  a  clerk  to  duty  ia 
not  such  a  regulation.  (Harvey  v.  U.  S.,  3  Ct.  of  CI. 
38.) 

Contracts  express  or  implied. — The  United  States 
is  not  liable  on  a  contract  where  the  officer  made  it 


1367  COURT  OF  CLAIMS— JURISDICTION.  §  637 

without  authority,  unless  ratified,  or  the  benefits  were 
received.  (De  Celis  v.  U.  S.,  13  Gt.  of  CI.  117.)  An 
implied  contract  cannot  arise  out  of  acts  of  an  agent 
who  had  no  power  or  authority  to  contract.  (Pitcher 
V.  U.  S.,  1  Ct.  of  CI.  7.)  To  constitute  an  implied  con- 
tract there  must  be  a  consideration  moving-  to  the 
United  States,  or  they  must  have  received  benefits 
from  the  property,  or  claimant  must  have  a  lawful 
right  to  the  property.  As  in  case  of  money  paid  by 
mistalve.  (Knote  v.  U.  S.,  95  U.  S.  149.)  So  where 
the  United  States  receives  money  through  the  fraud 
of  their  agent.  (U.  S.  v.  State,  96  U.  S.  30.)  So  the 
owner  of  land  sold  for  the  direct  tax  may  prosecute 
an  action  in  the  court  of  claims  to  recovei*  the  sur- 
plus. (Taylor  v.  U.  S.,  14  Ct.  of  01.  339.)  A  claim 
based  upon  an  implied  promise  to  repay  money  er- 
roneously exacted  is  within  the  provisions  of  this  sec- 
tion. (Schleslnger  v.  U.  S.,  1  Ct.  of  Ol.  16.)  A  claim 
for  salvage  services  may  be  prosecuted  in  the  court 
of  claims  (Brynn  v.  U.  S.,  6  Ct.  of  CI.  128),  or  for  de- 
livery of  goods,  though  the  original  contract  made  by 
another  person  was  void.  (Heatbfield  v.  U.  S.,  8 
Ct.  of  CI.  213.)  The  owner  of  land  laay  provsecute  a 
claim  for  compensation  for  the  use  thereof.  (John- 
son V.  U.  S.,  4  Ct.  of  CI.  248.)  The  court  of 
claims  cannot  render  judgment  for  recovery  on  a 
military  land  warrant  against  the  government  (U. 
S.  V.  Alire,  6  WaU.  573;  Chamberlain  v.  U.  S.,  20 
Law  Eep.  681;  Jewett  v.  U.  S.,  23  Law  Eep.  G33): 
and  although  the  United  States  disposes  of  land 
in  violation  of  a  ti-ust,  yet  the  holder  of  the  war- 
rant cannot  enforce  a  claim  arising  from  such 
breach.  (Bonner  v.  U.  S.,  9  Wall.  156.)  When 
the  government  is  liable  on  contract  this  court  alone 
has  jurisdiction.  (Case  v.  Terrell,  11  Wall.  199; 
Gibbons  v.  U.  S.,  8  Wall.  269.)  It  lies  on  an  implied 
contract  for  services,  equipment,  and  manning  of  a 


§  637  COURT  OF  CLAIMS— JURISDICTION.  1368 

vessel  in  the  service  of  governments  (U.  S.  v.  Rus- 
sell. 13  Wall.  62^3),  bnt  not  in  case  of  impressment 
of  a  vessel.  (U.  S.  v.  Kimbal,  13  Wall.  630.)  Where 
property  is  taljcn  for  public  use  the  government  is 
under  au  implied  obligation  to  make  compensation 
therefor.     (U.  S.  v.  Great  Falls  M.  Co.,  112  U.  S.  645.) 

Damages. — A  patentee  cannot  maintain  an  action 
of  damages  for  the  infringement  of  a  patent;  so  held 
■where  the  warden  of  a  penitentiary  infringed  the 
patent  and  paid  the  proceeds  from  the  sale  of  the  ar- 
ticles made  to  the  United  States  (Fletcher  v.  U.  S., 
11  Ct.  of  CI.  748);  but  the  government  may  be  sued 
for  the  use  of  a  patented  invention  (Jones  v.  Camp- 
bell, 3  Ct.  of  CI.  440;  McKeever  v.  U.  S.,  14  Ct.  of  CI. 
396),  or  for  the  royalty  which  the  government  agrees 
to  pay  for  its  use.  (U.  S.  v.  Burns,  12  Wall.  240.) 
If  the  United  States  leases  a  piece  of  property,  a 
claim  for  damages  arising  after  the  execution  of  the 
lease  from  the  want  of  reasonable  care  in  the  use  »iay 
be  maintaine<l  in  the- court  of  claJms.  (U.  S.  v.  Bost- 
wick,  94  U.  S.  53.)  So  a  party  who  suffers  loss  from 
the  refusal  of  government  to  accept  goods  according 
to  eonti-act  may  recover  (Gibbons  v.  U.  S.,  8  Wall. 
208);  but  the  court  of  claims  cannot  try  cases  for 
merely  nominal  damages  on  breach  of  contract. 
(Grant  v.  U.  S.,  7  AVall.  331.)  The  court  of  claims  has 
jurisdiction  to  entertain  a  claim  for  compensation  for 
the  use  of  a  patented  invention,  upon  an  implied  con- 
tract. (United  States  v.  Taimcr,  128  U.  S.  202.)  But 
an  inventor  in  the  government  service,  who  allows  the 
government  to  test  his  invention  and  bring  it  into 
practical  use  at  its  own  cost  before  he  applies  for  a 
pateoit,  cannot  claim  an  implied  contract  to  pay  him 
for  its  use.  (Gill  v.  U.  S.,  25  Ct.  of  CI.  415.)  Where  a 
claim  for  use  of  a  patent  has  never  been  submitted 
to  the  government,  or  any  pay  for  it  asked,  the  fact 
that  officers  of  the  government  have  made  unauthor- 


1369  COURT   OF   CLAIMS— JURISDICTION.  §  637 

ized  use  of  the  invention  does  not  create  an  implied 
couti'act  within  the  jurisdJiction.  (Forehand  v.  U.  S., 
17  Wash.  L.  R.  37.)  Where  an  employee  devises  an 
improvement  and  perfects  the  invention  during  w^orli- 
ing  houi's,  the  government  paying  all  expenses  and 
talcing  out  the  patent,  no  contract  for  royalty  can  be 
implied.  (McAleer  v.  U.  S.,  25  Ct.  of  CI.  238.)  The  in- 
fringement of  a  patent  is  not  the  talking  of  private 
property  for  public  use,  in  the  sense  of  the  Constitu- 
tion; and  the  court  of  claims  has  no  jurisdiction  of  a 
claim  for  infringement  on  that  gi-ound.  (Forehand 
v.  U.  S.,  Ct.  of  CI.,  17  Wash.  L.  R.  37.) 

Torts.— No  demand  founded  on  a  tort  can  be  prose- 
cuted in  the  court  of  claims.  (German  Banli  v. 
United  States,  148  U.  S.  573;  Schillinger  v.  United 
States,  155  U.  S.  162;  Gibbons  v.  U.  S.,  8  Wall.  269; 
Gibson's  Case,  29  Ct.  of  CI.  18.)  As  a  claim  for  dam- 
age to  a  building  prior  to  the  lease  thereof  (U.  S.  v. 
Bostwick,  94  U.  S.  53);  or  for  a  loss  arising  from  an 
an-est  and  false  imprisonment  (Spicer  v.  U.  S.,  1  Ct. 
of  Ol.  316);  or  for  damages  by  bombardment  of  a 
tovpn  (PeiTin  v.  U.  S.,  12  Wall.  315);  or  for  damages 
from  a  collision  with  a  United  States  vessel  (Dennis 
V.  U.  S.,  2  Ct.  of  CI.  210);  or  for  the  wrongful  diver- 
sion  of  the  proceeds  of  land  by  a  State  (M.  &  R.  R. 
Canal  Co.  v.  U.  S.,  1  Ct.  of  CI.  187);  or  for  takiug  pos- 
session of  laud  by  the  government,  by  force,  under  a 
claim  of  title  (Langford  v.  U.  S.,  101  U.  S.  341);  or 
for  damages  for  impairing  a  navigable  waterway 
(Gibson's  Case,  29  Ct.  of  CI.  18);  or  for  the  wi-ongful 
use  of  a  patent  (Schillinger  v.  United  States,  155  U.  S. 
163;  United  States  v.  Berdan  Fire  Arms  Mfg.  Co., 
156  U.  S.  552);  or  for  the  faulty  construction  of  a  dam. 
(Haywards'  Case,  30  Ct  of  CI.  219.)  So  if  an  officer 
after  terminating  a  contract  compels  the  contractor  to 
perform  it,  the  latter  cannot  prosecute  for  an  addi- 
tional offense  above  that  stipulated.  (Gibbons  v.  U. 
Fed.  Pkoc— 115. 


§  637  COUKT  OF  CLAIMS— JURISDICTION.  1370 

S.,  8  Wall.  2G9.)  The  court  of  claims  has  no  jurisdic- 
tion of  a  case  gi-owiug  out  of  au  appropriation  of 
property  by  the  army  or  navy  (Slawson  v.  U.  S.,  16 
Wall.  310;  Filor  v.  U.  S.,  9  Wall.  45);  or  for  its  de- 
struction by  the  army  or  navy  (Pugh  v.  U.  S.,  13 
Wall.  633);  or  for  injuries  to  a  vessel  by  tortious  acts 
of  an  officer.  (Morgan  v.  U.  S.,  14  Wall.  531.)  A 
claim  cannot  be  maintained  against  the  United  States 
for  indemnity  on  account  of  a  judgment  against  the 
plaintiff  in  an  action  sounding  in  tort  for  acts  done 
by  him  as  an  agent  of  the  government.  (Carpenter  v. 
United  States,  45  Fed.  Rep.  341.)  "Damages  in  cases 
not  sounding  in  tort"— that  is  to  say,  damages  for 
bi-each  of  contract— have  already  been  held  to  be  re- 
oovurable  against  the  government  under  the  former 
acts.  (United  States  v.  Behan,  110  U.  S.  338;  United 
States  V.  Great  Falls  Mfg.  Co.,  112  U.  S.  645;  HolHs- 
ter  V.  Benedict  &  B.  Mfg.  Co.,  113  U.  S.  59,  67;  United 
States  V.  Jones,  131  U.  S.  1.)  "A  claim,"  in  a  just 
juridical  sense,  is  a  demand  of  some  mattco*,  as  of 
right  made  by  one  person  upon  another,  to  do  or  to 
forbear  to  do  some  act  or  thing,  as  a  matter  of  duty. 
(Prigg  V.  Pennsylvania,  16  Pet.  539.)  Cases  sounding 
in  tort  cannot  be  brought  against  the  United  States, 
under  the  act  of  Congress  of  March  3,  1887.  (Carpen- 
ter V.  United  States,  42  Fed.  Rep.  264;  German  Bank 
V.  United  States,  148  U.  S.  573;  Schillinger  v.  United 
States,  155  U.  S.  163.) 

Claims  reported  on  adversely.- This  proviso,  ex- 
cluding from  the  jurisdiction  of  the  courts  therein 
mentioned  claims  "which  have  heretofore  been  re- 
jected or  reported  on  adversely  by  any  court,  depart- 
ment, or  commission  authorized  to  hear  and  deter- 
mine the  same,"  applies  only  to  claims  which  have 
been  adjudicated  by  a  court,  department,  or  cromrais- 
sion  aulhnrized  to  detci-mine  between  the  pariies,  and 
not  to  claims  which  have  been  rejected  in  the  ordi- 


1371  COUKT   OF   CLAIMS— JUEISDICTION.  §  638 

nary  process  of  presentation.  (Stanton  v.  United 
States,  37  Fed.  Rep.  252.  Contra,  Bliss  v.  United 
States,  34  Fed.  Rep.  781;  Rand  v.  United  States,  36 
Fed,  Rep.  671.  See  Wai-d  v.  United  States,  10  Wall, 
693.) 

War  claims  excluded. — A  claim  for  tlie  seizure  and 
appropriation  of  a  railroad  during  Uie  wai-  by  military 
autiiorities  of  the  United  States,  vvittiout  the  assent  of 
the  owner,  and  without  any  understanding  that  com- 
pensation was  to  be  made,  is  a  war  claim,  excluded 
from  the  jurisdiction  of  the  court  of  claims.  (United 
States  V.  Winchester  &  P.  R.  Co.,  163  U.  S.  244.)  The 
certification  of  a  war  claim  by  an  executive  depart- 
ment to  the  court  of  claims  under  Uniited  States  Re- 
vised Statutes,  section  1063,  cannot  give  the  court 
jmisdiotion.  (United  States  T.  Winchester  &,  P.  R. 
Co.,  163  U.  S.  244.) 

§  638.  Set-offs,  counterclaims,  etc. — Proviso — 
Limitations. — Second.  All  set-oflis,  counterclaims, 
claims  for  damages,  whether  liquidated  or  unliqui- 
dated, or  other  demands  whatsoever  on  the  part  oi 
the  Govern mentof  the  United  States  against  any 
claimant  against  the  Government  in  said  court; 
provided,  that  no  suit  against  the  Government  of 
the  United  States  shall  be  allowed  under  this  act, 
unless  the  same  shall  have  been  brought  within 
six  years  after  the  right  accrued  for  which  the 
claim  is  made;  provided,  further,  that  no  suit, 
against  the  Government  of  the  United  States, 
brought  by  any  ofl&cer  of  the  United  States  to  re- 
cover fees  for  services  alleged  to  have  been  per- 
formed for  the  United  States,  shall  be  allowed  un- 
der this  Act,  unless  an  account  for  said  fees  shall 
have  been  rendered  and  finally  acted  upon  accord- 


§  638  CUUKT   OF   CLAIMS— JURISDICTION.  1372 

ing  to  the  provisions  of  the  Act  of  July  31,  1894 
(chapter  174,  28th  Statutes  at  Large,  page  162), 
unless  the  proper  accounting  officer  of  the  treas- 
ury fails  to  finally  act  thereon  within  six  months 
after  the  account  is  received  in  said  office.  (Rev. 
Stats,  sec.  1059,  as  amended;  24  U.  S.  Stats.  505, 
sec.  1.  el.  2;  30  U.  S.  Stats.  494,  sec.  1;  30  U.  S. 
Stats.  649.) 

Note.— A  claim  aigainst  the  United  States  is  barred 
within  six  years  after  suit  could  be  commenced  there- 
on against  tlie  government.  (Finn  v.  United  States. 
123  U.  S.  227.)  Amendments  to  a  petition  are  always 
proper,  as  against  the  statute  of  limitations,  when  no 
new  cause  of  action  is  introduced,  although  the  ori- 
ginal petition  embraced  the  claim  only  by  general 
allegations.  (Bucli  v.  United  States,  25  Ct.  of  CI. 
120.) 

Set-off  and  counterclaim.— Demands  of  every  kind, 
whether  liquidated  or  unliquidated,  may  be  set  off 
against  a  claimant  (Allen  v.  United  States,  17  Wall. 
207);  as  the  amount  due  by  a  surety  on  a  bond  (Mc- 
Knight  V.  United  States,  98  U.  S.  179);  or  a  claim 
against  an  insolvent  debtor  for  the  proceeds  of  bonds 
unlawfully  converted  by  him  (Alien  v.  United  States, 
17  Wall.  207);  or  an  assigned  claim  of  a  judgment 
debtor  (Macauley  v.  United  Slatfts,  11  Ct.  of  CI.  693); 
or  a  claim  for  an  internal  revenue  tax.  (Roman  v. 
United  States.  11  Ct.  of  CI.  701.)  Where  a  setoff  is 
pleaded  in  a  suit  brought  by  the  TTnited  States,  the 
refusal  to  direct  the  jury  to  certify  the  amount  due 
will  not  be  reviewed.  (Schaiunbui-g  v.  United  States, 
103  U.  S.  007.)  Verdict  where  a  setoff  in  United 
States  is  in  excess  of  the  claim  sued  for  (Schaumburg 
V.  United  States,  103  U.  S.  007),  the  amount  due  from 
an  officer  for  an  income  tax  will  not  be  deducted  from 


1373  COURT  OF  CLAIMS— JURISDICTION  §  638 

his  salary.  (Jones  v.  United  States,  4  Ct.  of  CI.  197.) 
If  no  attempt  Is  made  to  deduct  the  tax  on  the  prop- 
erty, it  cannot,  after  judgment,  be  deducted  by  the 
secretary  of  the  treasury.  (United  States  v.  O' Grady, 
22  Wall.  641.)  It  is-  the  duty  of  the  treasury  depart- 
ment, through  the  accounting  officers,  to  settle  all 
claims  and  demands  by  and  against  the  United  States, 
and  in  proper  cases  to  set  off  one  against  the  other, 
when  the  government  is  both  debtor  and  creditor  of 
the  same  party.  (Howes  v.  United  States,  24  Ct.  of 
CI.  170.)  Where  an  officer,  after  settlement  with  the 
govemment,  sues  it  in  the  court  of  claims  for  back 
pay,  it  may  recover  against  him  moneys  improperly 
paid  to  him  before  the  settlement,  winch  it  has 
pleaded  as  a  setoff.  (McElrath  v.  United  States,  102 
U.  S.  426.)  An  overijayment  made  to  a  former  rail- 
road company  before  the  property  passed  by  purchase 
to  the  present  claimant,  and  before  contract  relations 
existed  between  the  government  and  the  present 
claimant,  camnot  be  set  up  by  way  of  counterclaim. 
(Duval  V.  United  States,  25  Ct.  of  CI.  46.)  A  substan- 
tive, independent  claim  cannot  be  recovered  by  a  de- 
fendant from  the  Stiite,  by  way  of  setoff,  any  more 
than  by  direct  suit.  (Commonwealth  v.  Matlack.  4 
Dall.  303.)  A  claim  which  has  never  been  filed  in 
the  interior  department  does  not  come  within  the 
category  of  claims  provided  for  in  the  second  clause 
of  the  above  act.  (Johnson  v.  United  States,  160  U.  S. 
546.) 

Judgment.— The  only  judgment  the  court  of  claims 
can  render  against  the  government  is  one  for  money 
found  due  to  the  claimant.  (United  States  v.  Alire, 
6  Wall.  573;  United  States  v.  Anderson,  9  Wall.  56; 
Brown  v.  United  States,  6  Ct.  of  CI.  171.)  If  the  pro- 
ceeds of  claimant's  property  is  intermingled  with  that 
of  other  property,  he  is  entitled  to  only  his  propor- 
tionate share  of  the  mass  (Sharp  v.  United  States,  12 


§  639  COURT  OF  CLAIMS— JURISDICTION.  1374 

Ct.  of  CI.  G3S);  and  when  the  fund  vanishes  the  juris- 
diction of  the  court  is  at  an  end.  (Thomas  v.  United 
States,  12  Ct.  of  CI.  273;  Sharp  v.  United  States,  12 
Ct.  of  CI.  638.)  Under  the  act  of  March  3,  1887,  the 
court  has  power  to  render  .iudgment  in  favor  of  the 
United  States  for  any  balance  which  may  be  found 
due  them  upon  any  setoff  or  counterclaim.  (United 
States  V.  Saunders,  U.  S.  App.,  79  Fed.  Rep. 
407.)  Although  there  is  an  error  in  a  judgment  in 
favor  of  a  prior  claimant  for  a  part  of  the  mass,  the 
claimant  is  entitled  to  his  full  share.  (Winchester  v. 
United  States,  99  U.  S.  372;  Sevier  v.  United  States, 
7  Ct.  of  CI.  388.)  A  person  who  has  paid  a  fine  under 
sentence  of  a  military  commission  organized  in  a 
State  where  the  courts  were  open  may  prosecute  an 
action  to  recover  the  money.  (Devlin  v.  U.  S.,  12 
Ct.  of  CI.  266.)  That  the  only  judgment  which  is 
authorized  is  a  money  judgment,  see  Case  v.  Terrell, 
11  Wall.  199;  20  L.  Ed.  134;  United  States  v.  Jones, 
131  U.  S.  1.  The  court  of  claims  cannot  allow  mere 
extra  allowances  wliere  tliere  is  no  promise  to  that 
effect,  either  express  or  implied.  (Hawlcins  v.  United 
States,  96  U.  S.  689.)  A  judgment  will  be  allowed  to 
stand  if  an  error  can  be  corrected  by  the  claimant's 
remitting  a  part.  (Tully's  Case,  32  Ct.  of  CI.  1.)  The 
circuit  court  has  no  jurisdiction  to  award  interest  on 
a  judgment  which  was  rendered  by  the  court  of 
claims  without  making  provision  for  interest;  the 
court  of  claims  is  the  proper  forum  for  the  determina- 
tion of  the  question  of  jurisdiction.  (Walton  v.  United 
States,  61  Fed.  Rep.  486:  Bnnton  v.  United  States,  62 
Fed.  Rep.  171.)  Where  three  suits  against  tliree  tribes 
of  Indians  have  been  united  in  one  ca.se  witliout 
objection,  several  judgments  must  be  entered.  (Bar- 
row Porter  &  Co.'s  Case,  30  Ct.  of  CI.  54.) 

§  639.     Concurrent  jurisdiction. — The   district 
courts  of  the  United  States  shall  have  concurrent 


1375  COURT  or   CLAIMS— JURISDICTION.  §  639 

jurisdiction  with  the  court  of  claims  as  to  all  mat- 
ters named  in  the  preceding  section  where  the 
amount  of  the  claim  does  not  exceed  one  thou- 
sand dollars,  and  the  circuit  courts  of  the  United 
States  shall  have  such  concurrent  jurisdiction  in 
all  cases  where  the  amount  of  such  claim  exceeds 
one  thousand  dollars  and  does  not  exceed  ten 
thousand  dollars.  All  cases  brought  and  tried  un- 
der the  provisions  of  this  act  shall  be  tried  by 
the  court  without  a  jury.  The  jurisdiction  hereby 
conferred  upon  the  said  circuit  and  district  courts 
shall  not  extend  to  cases  brought  to  recover 
fees,  salary  or  compensation  for  official  services 
of  officers  of  the  United  States  or  brought  for  such 
purpose  by  persons  claiming  as  such  officers  or  as 
assignees  or  legal  representatives  thereof.  (24  U. 
S.  Stats.  505,  sec.  2;  as  amended,  30  U.  S.  Stats. 
495.) 

Note.— Act  of  March  3.  1887,  to  provide  for  bringing 
suits  against  the  government  does  not  authorize  equi- 
table relief  by  suits  for  specific  performance  to  com- 
pel the  issue  and  delivery  of  a  patent  for  land.  (Unit- 
ed States  V.  Jones,  131  U.  S.  1;  U.  S.  v.  Alire,  9  Wall. 
573;  Bonner  v.  U.  S.,  9  Wall.  156;  U.  S.  v.  Gillis,  95 
U.  S.  407;  U.  S.  v.  Schurz,  102  U.  S.  378.)  The  above 
section  does  not  authorize  the  courts  to  entertain  a 
petition  to  cancel  a  judgment  lien  alleged  to  have  been 
unlawfully  placed  upon  the  property  of  the  petition- 
ers by  an  officer  of  the  United  States  in  an  attempt 
to  enforce  a  judgment  recovered  by  the  United  States. 
(Holmes  v.  United  States,  78  Fed.  Rep.  513.  See,  gen- 
erally, United  States  v.  Saunders,  U.  S.  App.,  79  Fed. 
Rep.  407;  McDonald  r.  United  States,  66  Fed.  Rep. 
255.) 


§§  640-641  COURT  OF  CLAIMS— JURISDICTION.  1376 

§  640.  Release  from  official  bond. — Whenever 
any  person  shall  present  his  petition  to  the  court 
of  claims  alleging  that  he  is  or  has  been  indebted 
to  the  United  States  as  an  officer  or  agent  there- 
of, or  by  virtue  of  any  contract  therewith,  or  that 
he  is  the  guarantor,  or  surety,  or  personal  repre- 
sentative of  any  officer,  or  agent,  or  contractor  so 
indebted,  or  that  he,  or  the  person  for  whom  he 
is  such  surety,  guarantor,  or  personal  representa- 
tive has  held  any  office  or  agency  under  the  Uni- 
ted States,  or  entered  into  any  contract  therewith, 
under  which  it  may  be  or  has  been  claimed  that  an 
indebtedness  to  the  United  States  has  arisen  and 
exists,  and  that  he  or  the  person  he  represents 
has  applied  to  the  proper  department  of  the  Gov- 
ernment requesting  that  the  account  of  such  of- 
fice, agency,  or  indebtedness  may  be  adjusted  and 
settled,  and  that  three  years  have  elapsed  from 
the  date  of  such  application  and  said  account 
still  remains  unsettled  and  iTuadjusted,  and  that 
no  suit  upon  the  same  has  been  brought  by  the 
United  States,  said  court  shall,  due  notice  first 
being  given  to  the  head  of  said  department  and 
to  the  attorney-general  of  the  United  States,  pro- 
ceed to  hear  the  parties  and  to  ascertain  the 
amount,  if  any,  due  the  United  States  on  said  ac- 
count.   (24  U.  S.  Stats.  505,  sec.  3,  cl.  1.) 

Note.— The  .inrisdiction  given  by  the  above  section 
does  not  authorize  a  judgment  against  the  govern- 
ment.    (Gcrding's  Case,  28  Ct.  of  Cl.  531.) 

^  641.     Attorney-general  to    represent  United 
States. — The  attorney-general  sball  represent  the 


1377  COUKT  OF  CLAIMS— JURISDICTION.  §§  642-643 

United  States  at  the  hearing  of  said  cause.  The 
court  may  postpone  the  same  from  time  to  time 
whenever  Justice  shall  require.  The  judgment  of 
said  court,  or  of  the  supreme  court  of  the  United 
States,  to  which  an  appeal  shall  lie,  as  in  other 
cases,  as  to  the  amount  due,  shall  he  binding  and 
conclusive  upon  the  parties.  (24  U.  S.  Stats.  505, 
sec.  3,  cl.  2.) 

§  642.     Payment,    discharge    of    obligation. — • 

The  payment  of  such  amount  so  found  due  by  the 
court  shall  discharge  such  obligation.  An  action 
shall  accrue  to  the  United  States  against  such 
principal,  or  surety,  or  representative  to  recover 
the  amount  so  found  due,  which  may  he  brought 
at  any  time  Avithin  three  years  after  the  final 
judgment  of  said  court.  Unless  suit  shall  be 
brought  within  said  time,  such  claim  and  the 
claim  on  the  original  indebtedness  shall  be  forever 
barred.    (24  U.  S.  Stats.  505,  sec.  3,  cl.  3.) 

§  643.  Jurisdiction  and  procedure. — The  juris- 
diction of  the  respective  courts  of  the  United 
States  proceeding  under  this  Act,  including  the 
right  of  exception  and  appeal,  shall  be  governed 
by  the  law  now  in  force,  in  so  far  as  the  same  is 
applicable  and  not  inconsistent  with  the  provisions 
of  this  act;  and  the  course  of  procedure  shall  be 
in  accordance  with  the  established  rules  of  said 
respective  courts,  and  of  such  additions  and  modi- 
fications thereof  as  said  courtfe  may  adopt.  (24 
U.  S.  Stats.  505,  sec.  4.) 


§§  644-645  couKT  of  claims— jurisdiction.  1378 

§  644.     Petition  for  settlement  of  claims. — The 

plaintiff  in  any  suit  brought  under  the  provisions 
of  the  second  section  of  this. Act  shall  file  a  pe- 
tition, duly  verified  with  the  clerk  of  the  respec- 
tive covirt  having  jurisdiction  of  the  ease,  and  in 
the  district  where  the  plaintiff  resides.  Such  pe- 
tition shall  set  forth  the  full  name  and  residence 
of  the  plaintiff,  the  nature  of  his  claim,  and  a 
succinct  statement  of  the  facts  upon  which  the 
claim  is  based,  the  money  or  any  other  thing  claim- 
ed, or  the  damages  sought  to  be  recovered,  and 
praying  the  court  for  a  judgment  or  decree  upon 
the  facts  and  law.     (24  TJ.  S.  Stats.  505,  sec.  5.) 

Petition. — A  petition  is  bolh  process  and  declaration. 
Its  defects  as  a  declaration  do  not  nullify  it  as  a 
process.  As  a  declaration  it  is  a  subject  of  amend- 
ment.   (Duran's  Case,  31  Ct.  of  CI.  353.) 

§  645.     Service     of    petition  —  Answer. — The 

plaintiff  shall  cause  a  copy  of  his.  petition  filed 
under  the  preceding  section  to  be  served  upon  the 
district  attorney  of  the  United  States  in  the  dis- 
trict wherein  suit  is  brought,  and  shall  mail  a  copy 
of  the  same,  by  registered  letter,  to  the  attorney- 
general  of  the  United  States,  and  shall  thereupon 
cause  to  be  filed  with  the  clerk  of  the  court 
wherein  suit  is  instituted  an  affidavit  of  such  ser- 
vice and  the  mailing  of  such  letter.  It  shall  be 
the  duty  of  the  district  attorney  upon  whom  ser- 
vice of  petition  is  made  as  aforesaid  to  appear 
and  defend  the  interests  of  the  Government  in 
the  suit,  and  within  sixty  days  after  the  service 
of  petition  upon  him,  unless  the  time  should  be 


1379  COURT  OF  CLAIMS— JURISDICTION.  §  646 

extended  by  order  of  the  court  made  in  the  case 
to  file  a  plea,  answer,  or  demurrer  on  the  part 
of  the  government,  and  to  file  a  notice  of  any  coun- 
terclaim, setoff,  claim  for  damages,  or  other  de- 
mand or  defense  whatsoever  of  the  government  in 
the  premises;  provided,  that  should  the  district  at- 
torney neglect  or  refuse  to  file  the  plea,  answer, 
demurrer,  or  defense,  as  required,  the  plaintiff  may 
proceed  with  the  case  under  such  rules  as  the  court 
may  adopt  in  the  premises;  but  the  plaintiff  shall 
not  have  judgment  or  decree  for  his  claim,  or  any 
part  thereof,  unless  he  shall  establish  the  same 
by  proof  satisfactory  to  the  court.  (24  U.  S. 
Stats.  505,  sec.  6.) 

§  646.  Findings  and  opinion. — It  shall  be  the 
duty  of  the  court  to  cause  a  written  opinion  to  be 
filed  in  the  cause,  setting  forth  the  specific  findings 
by  the  court  of  the  facts  therein,  and  the  conclu- 
sions of  the  court  upon  all  questions  of  law  in- 
volved in  the  case,  and  to  render  judgment  there- 
on. If  the  suit  be  in  equity  or  admiralty,  the 
court  shall  proceed  with  the  same  according  to  the 
rules  of  such  courts.     (24  "U.  S.  Stats.  505,  sec.  7.) 

Findings.— The  findings  of  a  court  of  claims  in  an 
action  at  law  determine  all  matters  of  fact  precisely 
as  the  verdict- of  a  jury.  (Stone  v.  United  States,  164 
U.  S.  380.)  The  findings  of  the  court  of  claims  trans- 
mitted to  a  department  in  a  case  previously  trans- 
mitted by  the  court's  decision  is  not  a  judgment  which 
is  appealable  to  the  supreme  court.  (In  re  San- 
born, 148  U.  S.  222.)  The  findings  in  Congressional 
cases  are  not  intended  to  present  to  Congress  legal 


§§  647-648  COTJET  of  claims— jukisdiction,  1380 

questions  for  judicial  determination.  They  should  be 
so  framed  as  to  cause  no  misunderstanding  in  Con- 
gress as  to  the  legal  or  equitable  conditions  of  a  case. 
(Vance's  Case,  30  Ct.  of  CI.  252.)  Several  judgments 
may  he  entered  in  a  case  where  three  suits  against 
three  tribes  of  Indians  have  been  united  in  one  suit. 
(Barrow  Porter  &  Co.'s  Case,  30  Ct.  of  CI.  54.)  The 
court  of  claims  does  not  lose  jurisdiction  with  the  ex- 
piration of  the  term  unless  a  final  judgment  was 
rendered.     (Book's  Case,  31  Ct.  of  CI.  272.) 

§  647.  Interested  parties  may  testify. — In  the 
trial  of  any  suit  brought  under  any  of  the  pro- 
visions of  this  act,  no  person  shall  be  excluded  as  a 
witness  because  he  is  a  party  to  or  interested  in 
said  suit;  and  any  plaintiff  or  party  in  interest  may 
be  examined  as  a  witness  on  the  part  of  the  gov- 
ernment. Section  ten  hundred  and  seventy-nine 
of  the  Revised  Statutes  is  hereby  repealed.  The 
provisions  of  section  ten  hundred  and  eighty  of  the 
Revised  Statutes  shall  apply  to  cases  under  this 
act.    (24  U.  S.  Stats.  505,  sec.  8.)    ' 

§  648.     Appeals  and  writs  of  error — Procedure. 

— The  plaintiff  or  the  United  States,  in  any  suit 
brought  under  the  provisions  of  this  act,  shall  have 
the  same  rights  of  appeal  or  writ  of  error  as  are 
now  reserved  in  the  statutes  of  the  United  States 
in  that  behalf  made,  and  upon  the  conditions  and 
limitations  therein  contained.  The  modes  of  pro- 
cedure in  claiming  and  perfecting .  an  appeal  or 
writ  of  error  shall  confirm  in  all  respects,  and  as 
near  as  may  be,  to  the  statutes  and  rules  of  court 
governing  appeals  and  writs  of  error  in  like  causes. 
(24  U.  S.  Stats.  505,  sec.  9.) 


1S81  COUET  OF  CLAIMS— JURISDICTION.  §  649 

Appeals  from  court  of  claims.— In  a  departmental 
case  transmitted  under  the  Tucker  Act  of  1888,  no 
appeal  lies  to  the  supreme  court.  The  appeal  allowed 
by  the  above  section  extends  only  to  judgments.  (.San- 
born's Case,  27  Ct.  of  CI.  485;  In.  re  Sanborn,  148 
U.  S.  222.)  A  decree  after  appeal  and  affirmance  may 
be  extended  to  a  subsequently  accruing  cause  of  ac- 
tion. (Journeycake's  Case,  30  Ct.  of  CI.  172.)  When 
a  judgment  may  be  reviewed  in  the  supreme  court,  a 
decision  must  be  confined  to  the  legal  and  equitable 
rights  of  the  parties.  (Western  Cherokee  Indians' 
Case,  27  Ct.  of  CI.  1.) 

§  649.  Appeal,  when  taken. — When  the  find- 
ings of  fact  and  the  law  applicable  thereto  have 
been  filed  in  any  case  as  provided  in  section  6  of 
this  act,  and  the  judgment  or  decree  is  adverse  to 
the  government,  it  shall  be  the  duty  of  the  dis- 
trict attorney  to  transmit  to  the  attorney  general 
of  the  Unitted  States  certified  copies  of  all  the  pa- 
pers filed  in  the  caitse,  with  a  transcript  of  the 
testimony  taken,  the  written  findings  of  the  court, 
and  his  written  opinion  as  to  the  same;  whereupon 
the  attorney  general  shall  determine  and  direct 
whether  an  appeal  or  writ  of  error  shall  be  taken 
or  not;  and  when  so  directed  the  district  attorney 
shall  cause  an  appeal  or  writ  of  error  to  be  per- 
fected in  accordance  with  the  terms  of  the  statutes 
and  rules  of  practice  governing  the  same;  provided, 
that  no  appeal  or  writ  of  error  shall  be  allowed 
after  six  months  from  the  judgment  or  decree  in 
such  suit.  From  the  date  of  such  final  judgment 
or  decree  interest  shall  be  computed  thereon  at  the 
rate  of  four  per  centum  per  annum  until  the  time 
Fed.  Proc— 116. 


<!§  650-653  couBT  of  claims— jurisdiction.  1382 

when  an  appropriation  is  made  for  the  payment 
of  the  judgment  or  decree.  (24  U.  S.  Stats.  505, 
sec.  10.) 

§  650.  Report  to  Congress. — The  attorney  gen- 
eral shall  report  to  Congress,  and  at  the  beginning 
of  each  session  of  Congress,  the  suits  under  this 
act  in  which  a  final  judgment  or  decree  has  been 
rendered,  giving  the  date  of  each,  and  a  statement 
of  the  costs  taxed,  in  each  case.  (24  U.  S.  Stats. 
505,  sec.  11.) 

§  651.     Claims    referred    by    departments.  — 

When  any  claim  or  matter  may  be  pending  in  any 
of  the  executive  departments  which  involves  con- 
troverted questions  of  fact  or  law,  the  head  of 
such  department,  with  the  consent  of  the  claim- 
ant, may  transmit  the  same,  with  the  vouchers, 
papers,  proofs,  and  documents  pertaining  theretc, 
to  said  court  of  claims,  and  the  same  shall  be  there 
proceeded  in  under  such  rules  as  the  court  may 
adopt.  When  the  facts  and  conclusions  of  law 
shall  have  been  found,  the  court  shall  report  its 
findings  to  the  department  by  which  it  was  trans- 
mitted.    (24  U.  S.  Stats.  505,  sec.  12.) 

Note.— When  a  claim  is  referred  under  this  section 
the  findinjjs  of  the  court  of  claims  transmitted  to  the 
department  is  not  a  judgment  within  the  meaning  of 
sec.  9,  Act  18.S7.  or  of  Rev.  Stats.,  sec.  707,  and  is 
therefore  aot  appealable.  (In  re  Sanborn,  148  U. 
S.  222.) 

^  652.  Claims  referred  under  "Bowman  act" — 
Judgment. ^ — in  every  case  wliich  shall  come  before 


1383  COURT  OF  CLAIMS— JURISDICTION.  j?  653 

the  court  of  claims,  or  is  now  pending  therein 
under  the  provisions  of  an  act  entitled  "An  act  to 
afford  assistance  and  relief  to  Congress  and  the 
executive  departments  in  the  investigation  of 
claims  and  demands  against  the  government,"  ap- 
proved March  third,  eighteen  hundred  and  eighty- 
three,  if  it  shall  appear  to  the  satisfaction  of  the 
court,  upon  the  facts  estalilished,  that  it  has  juris- 
diction to  render  judgment  or  decree  thereon  un- 
der existing  laws  or  under  the  provisions  of  this  act, 
it  shall  proceed  to  do  so,  giving  to  either  party 
such  further  opportunity  for  hearing  as  in  its  judg- 
ment justice  shall  require,  and  report  its  proceed- 
ings therein  to  either  house  of  Congress,  or  to  the 
department  by  which  the  same  was  referred  to  said 
court.     (24  U.  S.  Stats.  505,  sec.  13.) 

§  653.  Reference  of  claims  pending  in  Con- 
gress.— Whenever  any  bill,  except  for  a  pension, 
shall  be  pending  in  either  house  of  Congress  pro- 
viding for  the  payment  of  a  claim  against  the 
United  States,  legal  or  equitable,  or  for  a  grant, 
gift,  or  bounty  to  any  person,  the  house  in  which 
such  bill  is  pending  may  refer  the  same  to  the 
court  of  claims,  who  shall  proceed  with  the  same  in 
accordance  with  the  provisions  of  the  act  approved 
March  third,  eighteen  hundred  and  eighty-three, 
entitled  an  "Act  to  afford  assistance  and  relief  to 
Congress  and  the  executive  departments  in  the 
investigation  of  claims  and  demands  against  the 
government,"  and  report  to  such  house  the  facts 
in  the  case  and  the  amount,  where  the  same  can 


§§  654-655  COURT  or  claims— jurisdiction.  1384 

be  liquidated,  including  any  facts  bearing  upon 
the  question  whether  there  has  been  delay  or 
laches  in  presenting  such  claim  or  applying  for 
such  grant,  gift,  or  bounty,  and  any  facts  bearing 
upon  the  question  whether  the  bar  of  any  statute 
of  limitation  should  be  removed  or  which  shall 
be  claimed  to  excuse  the  claimant  for  not  having 
resorted  to  any  established  legal  remedy.  (24  U. 
S.  Stats.  505,  sec.  .14.) 

Claims  referred. — If  a  claim  is  refen-ed  to  the  court 
of  claims  by  an  act  of  Congress,  it  is  subject  to  all 
the  restrictions  imposed  by  the  resolution.  (De  Groot 
V.  U.  S.,  5  Wall.  419;  Ex  parte  Atocha,  17  WaU.  430; 
Roberts  v.  U.  S.,  92  U.  S.  41;  Tillson  v.  U.  S.,  11  Ct. 
of  CI.  7.->8;  Harvey  v.  U.  S..  12  Ct.  of  CI.  141;  13  Ct.  of 
Ol.  322.)  The  determination  of  what  are  the  facts 
relative  to  the  rights  of  a  claimant  In  a  Congressional 
case,  and  the  determination  of  what  is  competent  evi- 
dence involve  the  exercise  of  the  judicial  function. 
To  this  extent  Congress  has  made  the  court  of  claims 
a  court  of  last  resort.  (Vance's  Case,  30  Ct.  of  CI. 
252.) 

§  654.  Costs. — If  the  government  of  the  United 
States  shall  put  in  issue  the  right  of  the  plaintiff 
to  recover,  the  court  may,  in  its  discretion,  allow 
costs  to  the  prevailing  party  from  the  time  of 
joining  such  issue.  Such  costs,  however,  shall  in- 
clude only  what  is  actually  incurred  for  witnesses, 
and  for  summoning  the  same,  and  fees  paid  to  the 
clerk  of  the  court.     (24  U.  S.  Stats.  505,  sec.  15.) 

§  655.  Inconsistent  laws  repealed. — All  laws 
and  parts  of  laws  inconsistent  with  this  act  are 


1385  COURT  OF  CLAIMS— JUBISDICTION.  §§  656-659 

hereby  repealed.  (24  U.  S.  Stats.  505,  sec.  16. 
Approved  March  3,  1887.) 

§  656.  Claims  allowed  by  the  first  auditor  and 
commissioner  of  customs.— Full  and  complete 
jurisdiction  is  conferred  by  the  appropriation  act 
of  July  7,  1884,  section  3,  on  the  court  of  claims, 
on  claims  allowed  by  the  first  auditor  and  com- 
missioner of  customs,  as  to  the  expenses  of  col- 
lecting the  revenue  from  customs  prior  to  July  18, 
1881,  being  the  difference  between  amount  paid 
and  legal  compensation  fixed  by  Revised  Statutes, 
sections  2733,  2738.  (Act  of  July  7,  1884;  23 
U.  S.  Stats.  257.) 

§  657.     Western  Cherokee  Indian  claims. — An 

act  to  authorize  the  court  of  claims  to  hear,  deter- 
mine, and  render  final  judgment  upon  the  claim 
of  the  old  settlers  or  Western  Cherokee  Indians. 
(Feb.  25,  1889;  25  U.  S.  Stats.  694.) 

§  658.     Shawnee  and  Delaware  Indian  claims. 

— An  act  to  refer  to  the  court  of  claims  certain 
claims  of  the  Shawnee  and  Delaware  Indians  and 
the  freedmen  of  the  Cherokee  nation,  and  fpr 
other  purposes.  COct.  1,  1890;  26  U.  S.  Stats. 
636.) 

§  659.  Private  claims  in  Congress. — All  peti- 
tions and  bills  praying  or  providing  for  the  satis- 
faction of  private  claims  against  the  government, 
founded  upon  any  law  of  Congress,  or  upon  any 
regulation  of  an  executive  department,  or  upon 


§  660  COURT   OF   CLAIMS— JURISDICTION.  l.'ISG 

any  contract,  expressed  or  implied,  with  the  gov- 
ernment of  the  United  States,  shall,  unless  other- 
wise ordered  by  resolution  of  the  house  in  which 
they  are  introduced,  be  transmitted  by  the  secre- 
tary of  the  Senate  or  the  rlerk  of  the  House  of 
Eepresentatives,  with  all  the  accompanying  docu- 
ments, to  the  court  of  claims.  (Rev.  Stats,  sec. 
1060.) 

Claims  referred  by  Congress. — The  jurisdiction  of 
the  court  of  claims  over  cases  referred  to  it  by  either 
house  of  Congress  is  subject  to  provisions  of  general 
statutes  of  limitation  regulating  that  jurisdiction. 
(Ford  V.  United  States,  116  U.  S.  213.)  This  court  has 
jurisdiction  of  an  action  by  a  State  against  the  United 
States  for  a  demand  arising  upon  an  act  of  Congi'ess. 
(United  States  v.  Louisiana,  123  U.  S.  32.) 

§  660.  Judgments  for  setoff  or  counterclaim. — 
Upon  the  trial  of  any  cause  in  which  any  setoff, 
counterclaim,  claim  for  damages,  or  other  demand 
is  set  up  on  the  part  of  the  government,  against 
any  person  making  claim  against  the  government 
in  said  court,  the  court  shall  hear  and  determine 
such  claim  or  demand  both  for  and  against  the 
government  and  claimant;  and  if,  upon  the  whole 
case,  it  finds  that  the  claimant  is  indebted  to  the 
government,  it  shall  render  judgment  to  that  ef- 
fect, and  such  judgment  shall  be  final,  with  the 
right  of  appeal,  as  in  other  cases  provided  for  by 
law.  Any  transcript  of  such  judgment  filed  in 
the  clerk's  office  of  any  district  or  circuit  court 
shall  ])e  entered  upon  the  records  thereof,  and 
shall  thereby  become  and  be  a  judgment  of  such 


1387  COURT  OF  CLAIMS— JURISDICTION.  §  661 

court  and  be  enforced  as  other  judgments  in  such 
courts  are  enforced.     (Eev.  Stats,  sec.  1061.) 

Note. — This  section  is  coustitutional,  although  there 
is  no  provision  for  a  jury  trial.  (McElrath  v.  U.  S., 
12  Ct.  of  CI.  312.)  If  no  definite  evidence  is  given  of 
the  counterclaim,  it  may  be  used  to  defeat  it,  but 
judgments  will  not  be  entered  against  claimant. 
(Shi-ewsbury  v.  U.  S.,  13  Ct.  of  CI.  183.)  If  the  bank- 
ruptcy assignee  of  claimant  becomes  a  party,  the 
claim  will  be  deducted  from  the  counterclaim  of  the 
United  States.  (Boughton  v.  U.  S.,  13  Ct.  of  CI.  284; 
see  Allen  v.  U.  S.,  17  WaU.  207.) 
♦ 

§  661.  Decree  on  accounts  of  paymasters,  etc. 
— Whenever  the  court  of  ck\ims  ascertains  the 
facts  of  any  loss  by  any  paymaster,  quartermaster, 
commissary  of  subsistence,  or  other  disbursing  offi- 
cer, in  the  cases  hereinbefore  provided,  to  have 
been  without  fault  or  negligence  on  the  part  of 
such  officer,  it  shall  make  a  decree  setting  forth 
the  amount  thereof,  and  upon  such  decree  the 
proper  accounting  officers  of  the  treasury  shall 
allow  to  such  officer  the  amount  so  decreed  as  a 
credit  in  the  settlement  of  his  accounts.  (Rev. 
Stats,  sec.  1062.) 

Accounts  of  disbursing'  oflB.cers,  etc. — A  disbursing 
officer  is  bound  to  exercise  that  degree  of  care  aud 
diligence  which  a  prudent  man  would  require  of  his 
agent  (Malone  v.  U.  S.,  5  Ct.  of  CI.  486);  but  what 
care  and  caution  may  require  at  one  time  may  not  be 
necessary  at  others.  (Glenn  v.  U.  S.,  4  Ct.  of  CI.  501; 
Malone  v.  U.  S.,  5  Ct.  of  CI.  186.)  If  a  disbursing  of- 
ficer puts  money  in  a  safe  which  is  captured  by  the 
enemy,  he  is  entitled  to  relief  (Christian  v.  U.  S.,  7 
Ct.  of  CI.  431);  or  if  his  clerk,  who  has  a  key,  steals  it 


§  663  COUKT  OF  CLAIMS— J UEISDICTION.  1388 

and  absconds  (Howell  v.  U.  S.,  7  Ct.  of  CI.  512);  or  a 
robber  enters  his  quarters  during  his  temporary  ab- 
sence, and  brealis  open  the  safe  (U.  S.  v.  Clarlv,  9G 
U.  S.  37;  S.  C.  11  Ct.  of  CI.  698);  or  if  he  leaves  his 
safe  or  box  in  a  fort,  and  it  is  stolen  (Glenn  v.  U.  S., 

4  Ct.  of  CI.  501) ;  or  if  he  keeps  money  in  a  chest  in  a 
building  where  other  disbursing  otficers  keep  funds 
(Prune  V.  U.  S.,  3  Ct.  of  CI.  209);  or  if  he  puts  his 
desk  with  money  and  vouchers  on  a  transportation 
train  which  is  captured  by  the  enemy  (Murphy  v.  U. 
S.,  3  Ct.  of  CI.  212),;  or  if,  while  carrying  money  in  his 
breast  pocket  in  the  way  such  officers  carry  it,  andi  he 
loses  it,  he  is  entitled  to  relief  (Whittelsey  v.  U.  S., 

5  Ct.  of  CI.  452);  or  if  he  puts  money  in  the  room 
where  he  sleeps,  and  it  is  taken  by  burglars,  he  is  en- 
titled to  relief.  (Malone  v.  U.  S.,  5  Ct.  of  CI.  486.) 
The  words  "fault"  or  "negligence"  must  be  taken  in 
their  common  and  popular  sense,  the  former  as  er- 
ror or  mistake,  and  the  latter  as  omission.  (Malone 
V.  U.  S.,  5  Ct.  of  CI.  486.)  So  a  paymaster  is  guilty 
of  negligence  if  he  inti'usts  a  large  amount  of  money 
to  an  orderly  to  take  to  bank  instead  of  taking  it  him- 
self.   (Holman  v.  U.  S.,  11  Ct.  of  CI.  642.) 

§  662.     Claims     referred     by     departments. — 

Whenever  any  claim  is  made  against  any  executive 
department  involving  disputed  facts  or  contro- 
verted questions  of  law,  where  the  amount  in  con- 
troversy exceeds  three  thousand  dollars,  or  where 
the  decision  will  affect  a  class  of  cases,  or  furnish  a 
precedent  for  the  future  action  of  any  executive 
department  in  the  adjustment  of  a  class  of  cases, 
without  regard  to  the  amount  involved  in  the  par- 
ticular case,  or  where  any  authority,  right,  priv- 
ilege, or  exemption  is  claimed  or  denied  under 
the  constitution  of  the  United  States,  the  head 


1389  COURT  OF  CLAIMS— JURISDICTION.  §  663 

of  such  department  may  cause  such  claim,  with 
all  the  vouchers,  papers,  proofs,  and  documents 
pertaining  thereto  to  be  transmitted  to  the  court 
of  claims,  and  the  same  shall  be  there  proceeded  in 
as  if  originally  commenced  by  the  voluntary  action 
of  the  claimant;  and  the  secretary  of  the  treasury 
may,  upon  the  certificate  of  any  auditor  or  comp- 
troller of  the  treasury,  direct  any  account,  matter, 
claim  of  the  character,  amount,  or  class  described 
in  this  section  to  be  transmitted,  with  all  the 
vouchers,  papers,  documents,  and  proofs  pertain- 
ing thereto,  to  the  said  court  for  trial  and  adjudi- 
cation; provided,  that  no  case  shall  be  referred  by 
any  head  of  a  department  unless  it  belongs  to  one 
of  the  several  classes  of  cases  which,  by  reason  of 
the  subject  matter  and  character,  the  said  court 
might,  under  existing  laws,  take  jurisdiction  of  on 
such  voluntary  action  of  the  claimant.  (Eev. 
Stats,   sec.  1063.) 

Reference  of  claims.— Claims  involving  disputed 
facts  or  controverted  questions  of  law  and  where  the 
amount  in  controversy  exceeds  $3,000.  or  in  certain 
cases  without  regard  to  the  amount  involved  may  be 
transmitted  to  the  court  of  claims,  if  not  barred  by 
time,  and  if  such  that  the  court  of  claims  could  take 
cognizance  of  at  the  suit  of  the  claimant.  (United 
Stafes  V.  State  of  New  Yorlv,  160  U.  S.  598.)  A  claim 
may  be  referred  by  the  head  of  a  department  at  any 
time  before  payment  (Delaware  Steamboat  v.  U.  S., 
5  Ct.  of  CI.  55),  although  previbusly  referred  to  ac- 
counting officers  (Winnisimmet  Co.  v.  U.  S.,  12  Ct. 
of  CI.  319);  so  of  a  claim  for  army  transportation 
(Delaware  Steamboat  v.  U.  S.,  5  Ct  of  CI.  55);  or 
a  claim  for  rent  of  land.    (Bright  v.  U.  S.,  6  Ct.  of  CI. 


§  663  COURT  OF  CLAIMS— JURISDICTION.  1390 

118.)  It  may  be  referred,  although  it  involves  a  con- 
troversy between  several  claimants.  (Bright  v.  U.  S., 
G  Ct.  of  CI.  118.)  The  head  of  a  department,  on  re- 
ferring the  cause,  transmits  the  necessary  papers. 
(Delaware  Steamboat  v.  U.  S.,  5  Ct.  of  CI.  55.)  The 
presentation  of  a  claim  for  rent  of  rooms  for  postof- 
fice  purposes  is  sufficient  to  talie  the  case  referred 
under  this  section  out  of  the  operation  of  the  statutes 
of  limitations.  (Warder  v.  United  States,  25  Ct.  of 
CI.  159.)  A  rule  of  the  court  of  claims,  which  re- 
quired that  the  -claimant  should  have  first  gone 
through  the  department  which  might  have  enter- 
taineil  tlie  claim  before  he  could  prosecute  in  that 
court,  is  void.  (United  States  v.  Clyde,  13  Wall.  35.) 
Wliere  a  claim  allowed  by  the  accovinting  officers  and 
approved  by  the  secretary  was  subsequently  referred 
under  the  above  section  the  court  of  claims  has  juris- 
diction. (Glynn's  Case,  32  Ct.  of  CI.  82.)  The  juris- 
diction of  the  court  of  claims  in  a  case  founded  on 
an  officer's  account  will  not  be  exercised  where  the 
account  stands  suspended  for  explanation  in  the 
treasury,  but  will  be  exercised  when  the  comptroller 
refuses  to  act.  (Cameron's  Case,  30  Ct.  of  CI.  340.) 
Where  a  claim  is  referred  under  this  section  a  demand 
for  unliquidated  damages  is  within  the  jurisdiction 
of  the  court.  (Myerle's  Case,  31  Ct.  of  CI.  105.)  The 
secretary  of  the  treasury,  after  determining  every 
fact  concerning  an  informer's  claim,  may  transmit  a 
question  of  law  for  the  decision  of  the  court  of 
claims.  (Morton's  Case,  31  Ct.  of  CI.  148.)  It  is  only 
by  Aurtue  of  the  pendency  of  a  claim  that  an  execu- 
tive department  has  power  to  refer  it  to  the  court 
of  claims  for  adjudication.  (Armstrong's  Case,  29  Ct. 
of  CI.  14«;  Colton's  Case,  29  Ct.  of  CI.  207.)  Where  a 
portion  of  an  account  is  rejected  and  both  the  ac- 
counting officers  and  the  claimant  treat  the  ruling 
as  final  tlie  claim  for  the  balance  cannot  be  trans- 
mitted.    (Colton's  Case,  22  Ct.  of  CI.  207.)     The  cer- 


1391  COURT  OF  CLAIMS— JURISDICTION.  §§  663-664 

tification  of  a  war  claim  to  the  court  of  claims  can- 
not give  that  court  jurisdiction.  (United  States  v. 
Winchester  &  P.  R.  Co.,  163  U.  S.  244.) 

§  663.  Procedure  in  cases  transmitted  "by  de- 
partments.— All  cases  transmitted  by  the  head  ot 
any  department,  or  upon  the  certificate  of  any 
auditor  or  comptroller,  according  to  the  provisions 
of  the  preceding  section,  shall  be  proceeded  in  as 
other  cases  pending  in  the  court  of  claims,  and 
shall,  in  all  respects,  be  subject  to  the  same  rules 
and  regulations.     (Rev.  Stats,  sec.  1064.) 

Cases  transmitted. — Where  the  claimants  contest 
and  one  fails  to  appear,  a  citation  may  issue  (Bright 
V.  U.  S.,  6  Ct.  of  CI.  118);  and  the  claimant  must  es- 
tablish his  claim  by  legal  proof.  (Bright  v.  U.  S.,  8 
Ct.  of  CI.  326.)  Questions  of  law  may  be  submitted 
for  the  decision  of  the  court.  (Amoskeag  &  C.  Co.  v. 
U.  S.,  6  Ct.  of  CI.  99;  Broulautour  v.  U.  S.,  7  Ct.  of 
CI.  555.)  The  allowance  of  the  claim  by  accounting 
officers  does  not  make  out  a  prima  facie  case.  (Mc- 
Knight  V.  U.  S.,  98  U.  S.  179.) 

§  664.  Judgments  in  cases  transmitted  by  de- 
partments, how  paid. — The  amount  of  any  final 
judgment  or  decree  rendered  in  favor  of  the  claim- 
ant, in  any  case  transmitted  to  the  court  of  claims 
under  the  two  preceding  sections,  shall  be  paid  out 
of  any  specific  appropriation  applicable  to  the  case, 
if  any  such  there  be;  and  where  no  such  appropria- 
tion exists,  the  judgment  or  decree  shall  be  paid 
in  the  same  manner  as  other  judgments  of  the  said 
court.     (Rev.  Stats,  sec.  10C5.) 

Note.— Allowance  of  a  judgment  against  a  collector 
•of  internal  revenue,  by  the  commissioner  and  the  sec- 


§  665  COURT  OF   CLAIMS— JURISDICTION.  1392 

retary  of  the  treasury,  makes  it  a  claim  against  the 
United  States;  and  a  judgment  creditor  may  recover 
thereon  in  the  court  of  claims.  (United  States  v. 
Frerichs,  124  U.  S.  315.)  Its  payment  satisfies  the  de- 
mand. (Id.)  The  jurisdiction  of  the  court  of  claims 
to  find  the  facts,  make  conclusions  of  law,  and  to  give 
opinions  in  matters  referred  to  it  by  heads  of  the 
executive  departments,  without  entering  judgments, 
is  not  restricted  by  the  following  section  forbidding 
jurisdiction  of  claims  dependent  on  a  treaty,  (Thing- 
valla  Line  v.  U.  S.,  24  Ct.  of  CI.  255.) 

§  665.     Judgments  and  claims  subject  to  offsets. 

— That  when  any  final  judgment  recovered  against 
the  United  States  or  otlier  claim  duly  allowed  by 
legal  authority  shall  be  presented  to  the  secretary 
of  the  treasury  for  payment,  and  the  plaintiff  or 
claimant  therein  shall  be  indebted  to  the  United 
States  in  any  manner,  whether  as  principal  or 
surety,  it  shall  be  the  duty  of  the  secretary  to 
withhold  payment  of  an  amount  of  such  judgment 
or  claim  equal  to  the  debt  thus  due  to  the  United 
States;  and  if  such  plaintiff  or  claimant  asserts 
to  such  set  off,  and  discharges  his  judgment,  or  an 
amount  thereof  equal  to  said  debt  or  claim,  the 
secretary  shall  execute  a  discharge  of  the  debt  due 
from  the  plaintiff  to  the  United  States.  But  if 
such  plaintiff  or  claimant  denies  his  indebtedness 
to  the  United  States,  or  refuses  to  consent  to  the 
setoff',  then  the  secretary  shall  withhold  payment 
of  such  further  amount  of  such  judgment  or  claim 
as,  in  his  opinion*  will  be  sufficient  to  cover  all 
legal  charges  and  costs  in  prosecuting  the  debt  of 
the  United  States  to  final  judgment.     And  if  such 


1393  COURT  OP  CLAIMS— JURISDICTION.  §  666 

debt  is  not  already  in  suit,  it  shall  be  the  duty  of 
the  secretary  to  cause  legal  proceedings  to  be  im- 
mediately commenced  to  enforce  the  same,  and  to 
cause  the  same  to  be  prosecuted  to  final  judgment 
with  all  reasonable  dispatch.  And  if  in  such  ac- 
tion judgment  shall  be  rendered  against  the  United 
States,  or  the  amount  recovered  for  debt  and  costs 
shall  be  less  than  the  amount  so  withheld  as  before 
provided,  the  balance  shall  then  be  paid  over  to 
such  plaintiff  by  such  secretary,  with  six  per  cent 
interest  thereon  for  the  time  it  has  been  withheld 
from  the  plaintiff.  (18  U.  S.  Stats.  481;  1  Sup. 
Rev.  Stats.  185;  Eev.  Stats,  sec.  1061  a.) 

Note.— If  the  clairrmnt  consents  that  the  debt  be 
set  off,  accepts  the  balance,  and  discharges  the  judg- 
ment, he  thereby  waives  his  right  to  test  its  validity 
by  legal  proceedings.  (Bounafin  v.  U.  S.,  14  Ct.  of 
CI.  484.) 

§666.     Claims  growing  out  of   treaties. — The 

jurisdiction  of  the  said  court  shall  not  extend  to 
any  claim  against  the  government  not  pending 
therein  on  December  one,  eighteen  hundred  and 
sixty-two,  growing  out  of  or  dependent  on  any 
treaty  stipulation  entered  into  with  foreign  na- 
tions or  with  the  Indian  tribes.  (Eev.  Stats,  sec. 
1066.) 

Note.— This  court  has  no  jurisdiction  over  claims  of 
foreign  governments,  assumed  by  treaty.  (Ex  parte 
Atocha,  17  Wall.  439.)  So  of  a  treaty  with  the  In- 
dians. (Langford  v.  U.  S.,  12  Ct.  of  CI.  338.)  Under 
this  section,  the  court  of  claims  has  no  jurisdiction  of 
a  claim  against  the  United  States  for  money  awarded 
Fi-.D.  Pkoc— 117. 


§  666  COURT  OF  CLAIMS— JUEISDICTION,  1394 

by  the  mixed  commission  under  the  Mexican  conven- 
tion of  1868.  (Ailing  v.  United  States,  114  U.  S.  562.) 
Nor  has  it  jurisdiction  of  a  claim  for  a  part  of  the 
money  received  from  Great  Britain  in  payment  of 
the  Geneva  award.  (Great  West  Ins.  Co.  v.  United 
States,  112  U.  S.  193;  Paulson  v.  U.  S.,  112  U.  S.  193. 
But  compare  United  States  v.  Weld,  127  U.  S.  51, 
distinguishing  the  last  two  cases.)  The  French  and 
American  claims  commission  possessed  no  autliority 
to  consider  any  claims  against  the  government  of 
either  the  United  States  or  of  France,  except  as  held, 
both  at  the  time  of  their  presentation  and  a  judgment 
thereon,  by  citizens  of  the  other  country.  (Burthe  v. 
Denis,  133  U.  S.  514.)  The  court  of  claims  does  not 
enter  judgment  in  French  spoliation  cases,  or  deter- 
mine what  persons  are  entitled  to  the  money  which 
Congress  may  thereafter  appropriate.  (The  Ganges, 
25  Ct.  of  CI.  110.)  The  obligation  is  founded  on  the 
law  of  nations,  and  the  obligation  on  the  offending 
government  is  perfect.  (Emerson  v.  Hall,  13  Pet. 
409.)  The  award  of  the  French-American  Commis- 
sion is  conclusive  upon  the  validity  of  the  claim,  but 
not  upon  conflicting  rights.  (De  Circe's  Succession, 
41  La.  Ann.  506.)  When  paid  to  the  executor  it  will 
be  distributed  in  the  course  of  administration.  (Id.) 
Where  the  contention  of  plaintiffs  in  error,  that  they 
are  entitled  to  an  award  rendered  by  the  French  and 
American  claims  commission,  is  founded  upon  the 
French  treaty  of  1880,  the  decision  of  the  supreme 
court  of  Louisiana  against  the  rights  thus  asserted  by 
them  presents  a  question  for  the  jurisdiction  of  the 
supreme  court  of  the  United  States.  (Burthe  v. 
Denis,  13B  U.  S.  514.)  Under  the  convention  held  in 
pursuance  of  the  treaty  between  the  United  States 
and  Mexico,  awards  by  commissioners  are  final  and 
conclusive  as  between  the  United  States  and  Mexico, 
until  set  aside  by  agreement  between  tlie  two  gov- 
ernments, or  otherwise.  (Frelinghuysen  v.  Key,  110 
U.  S.  63.) 


1395  COURT  OF  CLAIMS— JURISDICTION.  g§  667-668 

§  667.  Claims  pending  in  other  courts. — -No 
person  shall  hie  or  prosecute  in  the  court  of  claims, 
or  in  the  supreme  court  on  appeal  therefrom,  any 
claims  for  or  in  respect  to  which  he  or  any  as- 
signee of  his  has  pending  in  any  other  court  any 
suit  or  process  against  any  person  who,  at  the  time 
when  the  cause  of  action  alleged  in  such  suit  or 
process  arose  was,  in  respect  thereto,  acting  or  pro- 
fessing to  act,  mediately  or  immediately,  under  the 
authority  of  the  United  States.  (Eev.  Stats,  sec. 
1067.) 

§  668.  Aliens. — Aliens,  who  are  citizens  or  sub- 
jects of  any  government  which  accords  to  citizens 
of  the  United  States  the  right  to  prosecute  claims 
against  such  government  in  its  courts,  shall  have 
the  privilege  of  prosecuting  claims  against  the 
United  States  in  the  court  of  claims,  whereof  such 
court,  by  reason  of  their  subject  matter  and  char- 
acter, might  take  jurisdiction.  (Eev.  Stats,  sec. 
1068.) 

Aliens — When  may  prosecute  claims. — Aliens  of 
governments  contemplated  in  this  section  may  prose- 
cute claims  against  the  United  States,  although  such 
governments  may  reserve  the  right  to  deny  the 
remedy  on  a  few  sporndic  cases.  (U.  S.  v.  O'Keefe, 
11  Wall.  178;  Carlisle  v.  U.  S.,  16  Wall.  147.)  If  an 
alien  was  naturalized  l.ilure  the  adoption  of  this  sec- 
tion he  may  prosecute  his  action  (Bulwinkle  v.  U.  S. 
4  Ct.  of  CI.  395;  Mentz  v.  U.  S.,  4  Ct.  of  CI.  471),  and 
if  naturalized  before  the  plea  of  alienage,  he  may 
prosecute  an  action  commenced  before  its  adoption. 
(Scharfer  v.  U.  S..  4  Ct.  of  CI.  ")29;  Warner  v.  U.  S..  5 
Ct.  of  CI.  637.)     The  right  is  granted  fully  under  this 


§  669  COURT   OF   CLAIMS— JURISDICTION.  1396 

section,  although  a  citizen  of  the  United  States  is  re- 
quired to  give  security  for  costs.  (Brown  v.  U.  S.,  5 
Ct.  of  CI.  571.)  The  following  governments  accord  to 
citizens  of  the  United  States  the  right  to  prosecute 
claims  in  their  courts,  to  wit:  Belgium:  De  Give  v. 
U.  S.,  7  Ct.  of  CI.  577;  Frajice:  Rothchild  v.  U.  S.,  6 
Ct.  of  CI.  204;  Dauphin  v.  U.  S.,  6  Ct.  of  CI.  221;  Great 
Britain:  U.  S.  v.  O'  Keefe,  11  Wall.  178;  Cai-lisle  v.  U. 
S.,  16  Wall.  147;  Italy:  Fichera  v.  U.  S.,  9  Ct.  of  CI. 
254;  Prussia:  Brown  v.  U.  S.,  5  Ct.  of  CI.  571;  Spain: 
Nohing  V.  U.  S.,  6  Ct.  of  CI.  269;  Switzerland:  Lob- 
siger  V,  U.  S.,  5  Ct.  of  CI  6S7.  The  jurisdiction  of  a 
commission  appointed  under  a  treaty  to  pass  upon  a 
war  claim  of  an  alien  is  limited  to  the  determination 
of  the  validity  of  the  claim.  (Bodemuller  v.  United 
States,  39  Fed.  Rep.  437.)  After  it  has  been  passed 
upon  by  a  commission,  a  cause  of  action  for  a  recov- 
ery of  the  amount  awarded  is  not  against  the  govern- 
ment of  which  the  alien  was  a  citizen,  where  it  is 
not  shown  that  the  money  was  paid  to  that  govern- 
ment for  his  benefit,  (Bodemuller  v.  United  States, 
Id.)  Where  a  deduction  is  made  on  the  ground  that 
one  of  the  heirs  is  a  citizen  of  Louisiana,  where  there 
is  no  proof  of  his  right  to  sue  therefor,  suit  must  be 
brought  by  the  administratrix,  and  not  by  the  heir. 
(Id.) 

§  669.  Limitation. — Every  claim  against  the 
United  States,  cognizable  by  the  court  of  claims, 
shall  be  forever  barred  unless  the  petition  setting 
forth  a  statement  thereof  is  filed  in  the  court,  or 
transmitted  to  it  by  the  secretary  of  the  Senate  or 
the  clerk  of  the  House  of  Eepresentatives,  as  pro- 
vided by  law,  within  six  years  after  the  claim  first 
accrues;  provided,  that  the  claims  of  married  wo- 
men fi,rst  accrued  during  marriage,  of  persons  un- 


1397  COUKT  OF  CLAIMS— JUKISDICTION.  §  669 

der  the  age  of  twenty-one  years  first  accrued  dur- 
ing minority, and  of  idiots,  lunatics,  insane  persons, 
and  persons  beyond  the  seas  at  the  time  the  claim 
accrued,  entitled  to  the  claim,  shall  not  be  barred 
if  the  petition  be  filed  in  the  court  or  transmitted, 
as  aforesaid,  within  three  years  after  the  disability 
has  ceased;  but  no  other  disability  than  those 
enumerated  shall  prevent  any  claim  from  being 
barred,  nor  shall  any  of  the  said  disabilities  operate 
cumulatively.     (Eev.  Stats,  sec.  1069.) 

Limitations.— This  section  provides  that  every 
claim  against  the  United  States,  cognizable  by  the 
court  of  claims,  shall  be  forever  barred  unless  the 
petition  setting  forth  a  statement  thereof  is  filed  in 
the  court  within  six  years  after  the  claim  first  ac- 
crues. (U.  S.  V.  Taylor,  104  U.  S.  221.)  The  claim 
is  barred  unless  the  petition  is  tiled  within  six  years 
after  it  accrued  (Bell  v.  U.  S.,  20  Wall.  179;  McKnight 
V.  U.  S.,  98  U.  S.  179;  Cross  v.  U.  S.,  4  Ct.  of  CI.  271; 
Carter  v.  U.  S.,  6  Ct.  of  CI.  31;  Bulkeley  v.  U.  S.,  8 
Ct.  of  CI.  517;  Campbell  v.  U.  S.,  13  Ct.  of  CI.  108); 
but  the  petition  may  be  amended  although  more  than 
six  years  have  elapsed.  (Griflin  v.  U.  S.,  13  Ct.  of  CI. 
257;  Devlin  v.  U.  S.,  12  Ct.  of  CI.  266.)  So  it  is  not 
necessary  that  the  limitation  be  pleaded,  as  the  court 
is  bound  to  talje  cognizance  of  the  statute,  and  in- 
quire whether  it  appears  on  the  face  of  the  pleadings 
and  evidence  that  the  period  had  not  expired  when 
the  petition  was  filed.  (Kendall  v.  U.  S.,  14  Ct.  of  CI. 
122.)  The  court  of  claims  has  authority  to  hear  and 
determine  the  claim  of  any  disbursing  officer  for  re- 
lief from  responsibility  on  account  of  capture  or  other 
loss  of  funds  while  in  the  line  of  his  duty.  (U.  S.  v. 
Clark,  96  U.  S.  37.)  The  limitation  applies  to  the  post- 
master for  relief  for  money  stolen  from  him  when 


§  669  COURT   OF   CLAIMS— JURISDICTION.  1398 

government  has  refused  to  allow  his  claim.     (U.  S.  v. 
Smith,  105  TJ.  S.  620.)     The  limitation  does  not  apply 
to  suits  pending  at  the  time  of  its  adoption  (Pai'lin  v. 
U.  S.,  1  Ct.  of  CI.  174);  nor  to  a  claim  which  had  been 
referred  by  the  head  of  an  executive  department  for 
its  judicial  determination,  provided  it  was  presented 
within  six  years  after  it  accrued  (U.  S.  v.  Lippitt,  100 
U.  S.  603;  Winnisimmet  Co.  v.  U.  S.,  12  Ct.  of  CI.  319); 
nor  does  it  apply  to  claims  for  proceeds  of  captured 
and  abandoned  property.     (Tibbitts  v.  TJ.  S.,  1  Ct.  of 
CI.  169;  S.  C,  2  Ct.  of  CI.  582.)     No    exception    not 
found  in  the  statute  can  be  ingrafted.     (Cross  v.  U. 
S.,  4  Ct.  of  CI.  271.)    If  claimant  dies  before  the  claim 
is  due  the  statute  will  not  begin  to  run  until  an  ad- 
ministrator is  appointed  (Falenweider  v.  U.  S.,  9  Ct. 
of  CI.  403);  but  its  operation  is  not  suspended  by  his 
death  if  It  accrued  in  his  lifetime  (Sierra  v.  U.  S.,  9 
Ct.  of  CI.  224);  nor  will  the  payment  of  part  of  the 
debt  take   the   claim   out  of  the  statute.     (U.    S.   v. 
Wilder,   13  Wall.  254.)     If  claimant  was  an  inhabi- 
tant of  an  insurrectionary  State,  and  the  claim  ac- 
crued during  the  civil  war,  the  statute  runs  from  the 
time  of  the  suppression  of  the  rebellion  (Sierra  v.  U. 
S.,  9  Ct.  of  CI.  224),  and  not  from  the  date  of  the 
proclamation  of  pardon  and  amnesty.    (Kendall  v.  U. 
S..  14  Ct.  of  CI.  374.)    A  collector  of  customs'  claim  for 
his  salary  accrues  at  the  end  of  each  fiscal  year,  and 
tlie  statute  runs  from  that  time  (Bachelor  v.  U.  S.. 
8  Ct.  of  CI.  235;  Ellsworth  v.  U.  S.,  14  Ct.  of  CI.  582); 
and  for  money  paid  into  the  treasury  which  he  is  en- 
titled to  retain  the  statute  runs  from  its  payment. 
(Lawson  v.  U.  S.,  14  Ct.  of  CI.  332.)     So  a  cause  of 
action  accrues  upon  the  refusal  of  the  secretary  of  the 
treasury  to  pay  money,  the  surplus  proceeds  of  land 
sold  for  a  district  tax.     (Taylor  v.  U.  S.,  14  Ct.  of  CI. 
339.)     A  claim  for  money  arises  when  it  is  paid  into 
the  treasury  (Clark  v.  U.  S.,  99  U.  S.  493);  but  for 


1399  COURT   OF  CLAIMS— JURISDICTION.  §  669 

money  lost  by  claimant  the  statute  does  not  begin  to 
run  until  the  accounting  officers  of  the  treasury  re- 
fuse to  recognize  the  claim  as  a  valid  credit.     (U.  S.  v. 
Clark,  90  U.  S.  37;  Smith  v.  U.  S..  14  Ct.  of  CI.  114.-) 
On  a  contract  for  sale  of  goods  the  statute  runs  from 
the  time  the  price  is  payable.     (Batelle  v.   U.   S.,  7 
Ct.  of  CI.  297.)     Where  the  court  has  jurisdiction  of 
matter  ottered  in  evidence  the  statute  is  no  bar  to  a 
defense  involving  such  matters.     (U.  S.  v.  Clark,  96 
U.  S.  43.)     The  statute  of  limitations  begins  to  run 
against  a  claim  for  the  surplus  proceeds  of  lands  sold 
for  taxes,  under  the  act  of  1861,  from  the  date  of  the 
demand  luerefor  upon  the  secretary  of  the  treasury. 
(IT.  S.  V.  Lawton.  110  U.  S.  146;  approving  U.  S.  v. 
Taylor,  104  U.  S.  216.)     The  general  rule  that  limita- 
tion does  not  operate  by  its  own  force  as  a  bar,  but  is 
a  defense  Avhich  must  be  set  up  to  be  availed  of,  does 
not  apply  to  suits  in  the  court  of  claims  against  the 
United  States.    (Finn  v.  United  States,  123  U.  S.  227.) 
The  limitation  of  six  years  in  this  section  applies  to 
a  claim  of  the  State  for  moneys  due  to  it  from  the 
five  per  cent  fund.    (U.  S.  v.  Ix)uisiana,  127  U.  S.  182.) 
It  applies  to  a  claim  for  relief  by  a  paymaster  in  the 
army  for  money  stolen  from  him,  and  which  he  has 
replaced  and  paid  over.     (U.  S.  v.  Smith,  105  U.  S. 
620;  distinguishing  U.  S.  v.  Clark,  96  U.  S.  43.)     An 
action  by  the  State  to  recover  moneys  received  by  the 
United  States  from  sale  of  swamp-lands  is  not  barred 
until  six  years  after  the  amount  is  ascertained  by  the 
commissioner   of  the   general    land    oflice.      (United 
States  V.  Louisiana,  123  U.  S.  32.)     A  claim  on  behalf 
of  a  United  States  marshal  for  the  allowance  by  the 
government,  of  expenses  incurred  by  him  in  the  ser- 
vice for  it  of  a  distress  warrant,  which  accrued  more 
than  forty-seven  years  before  it  was  presented  to  the 
treasury  department,  is  a  stale  claim,  which  the  ac- 
counting officers  have  no  right  to  receive,  examine,  or 
seittle.  (Waddell  v.  U.  S.,  25  Ot.  of  CI.  323.) 


§§  670-673  COURT  of  claims— jurisdiction.  1400 

§  670.  Rules  of  practice — Contempts. — The 
said  court  shall  have  power  to  establish  rules  for 
its  government  and  for  the  regulation  of  practice 
therein,  and  it  may  punish  for  contempt  in  the 
manner  prescribed  by  the  common  law,  may  ap- 
point commissioners,  and  may  exercise  such  pow- 
ers as  are  necessary  to  carry  into  effect  the  powers 
granted  to  it  by  law.     (Eev.  Stats,  sec.  1070.) 

Note.— A  motion  for  an  order  upon  the  court  of 
claims  to  make  and  return  additional  findings  will  l>e 
denied,  unless  it  has  first  been  submitted  to  such 
court  in  a  written  request,  as  required  by  the  rule. 
(United  States  v.  Driscoll,  96  U.  S.  421.) 

§  671.     Oaths     and      acknowledgments. — The 

judges  and  clerks  of  said  court  may  administer 
oaths  and  affirmations,  take  acknowledgments  of 
instruments  in  writing,  and  give  certificates  of  the 
same.     (Eev.  Stats,  sec.  1071.) 

§  672.  Petition. — The  claimant  shall,  in  all 
cases,  fully  set  forth  in  his  petition  the  claim,  tlie 
action  thereon  in  Congress,  or  by  any  of  the  de- 
partments, if  such  action  has  been  had;  what  per- 
sons are  owners  thereof  or  interested  therein,  when 
and  upon  what  consideration  such  persons  became 
so  interested;  that  no  assignment  or  transfer  of 
said  claim,  or  of  any  part  thereof  or  interest  there- 
in, has  been  made,  except  as  stated  in  the  petition; 
that  said  claimant  is  justly  entitled  to  the  amount 
therein  claimed  from  the  United  States^  after  al- 
lowing all  just  credits  and  offsets;  that  the  claim- 
ant, and,  where  the  claim  has  been  assigned,  the 


1401  COURT  OF  CLAIMS— JURISDICTION.  §  672 

original  and  every  prior  owner  thereof,  if  a  citi- 
zen, has  at  all  times  borne  true  allegiance  to  the 
government  of  the  United  States,  and,  whether  a 
citizen  or  not,  has  not  in  any  way  voluntarily 
aided,  abetted  or  given  encouragement  to  rebellion 
against  the  said  government,  and  that  he  believes 
the  facts  as  stated  in  the  said  petition  to  be  true. 
And  the  said  petition  shall  be  verified  by  the  affi- 
davit of  the  claimant,  his  agent,  or  attorney.  (Eev. 
Stats,  sec.  1072.) 

Petition,  what  to  contain.— The  petition  must  set 
forth  claimant's  case  with  precision,  and  without  am- 
biguity, and  its  allegations  will  be  construed  most 
strongly  against  the  claimant.  (Merch.  Exch.  Co.  v. 
r.  S.,  1  Ct.  of  CI.  3.32;  Guttman  v.  U.  S.,  6  Ct.  of  CI. 
111.)  It  must  set  foii-tli  the  facts  upon  which  the 
right  to  recover  rests  (Merch.  Exch.  Co.  v.  U.  S.,  1  Ct. 
of  CI.  332;  Brown  v.  U.  S.,  1  Ct.  of  CI.  377;  Baird  v. 
U.  S..  5  Ct.  of  CI.  348;  8  Ct.  of  CI.  13;  Guttman  v.  U. 
S..  6  Ct.  of  CI.  Ill;  Monk  v.  U.  S.,  12  Ct.  of  CI.  293; 
Morgan  v.  U.  S.,  14  Ct.  of  CI.  442);  and  an  alien  must 
aver  that  he  never  in  any  way  aided,  abetted,  or  en- 
couraged the  rebellion  (Hill  v.  U.  S.,  8  Ct.  of  CI.  470); 
or  if  he  did,  that  he  had  been  pardoned.  (Pargoud  v. 
U.  S.,  13  Wall.  1.5(5;  contra,  Brockett  v.  U.  S.,  2  Ct. 
of  CI.  213.)  It  must  state  the  amount  of  the  claim  or 
relief  demanded  (Patterson  v.  U.  S.,  6  Ct.  of  CI.  GO); 
for  money  illegally  exacted  as  duties  it  must  aver  tliat 
a  protest  was  made  as  required  by  law  (Schlessinger 
V.  U.  S.,  1  Ct.  of  CI.  16;  Nicoll  v.  U.  S:,  1  Ct.  of  CI. 
70);  and  if  founded  on  an  act  of  Congress,  it  must 
refer  to  the  act.  (Noble  v.  U.  S.,  Dev.  Ct.  CI.  1.34.) 
It  must  set  forth  some  legal  disabilities  to  remove 
the  bar  of  the  statute  where  it  shows  the  claim  ac- 
crued more  than  six  years  before  its  filing  (Kendall  v. 


§  672  COURT   OF  CLAIMS— JURISDICTION.  1402 

U.  S.,  14  Ct.  of  CI.  122;  Kendall  v.  U.  S..  14  Ct.  of  CI. 
374);  but  the  disaliility  of  one  who  indorsed  a  drafi. 
and  passed  it  away  before  the  rebellion,  will  not  avail 
the  holder.  (Pierce  v.  U.  S.,  1  Ct.  of  CI.  195.)  It 
need  not  set  forth  the  evidence  to  be  used  to  prove 
the  facts  set  forth.  (Noble  v.  U.  S.,  Dev.  Ct.  CI. 
134.)  If  defective  in  its  averments  it  may  be  amended 
(Jones  V.  U.  S.,  1  Ct.  of  CI.  183);  but  not  without 
leave  of  court  (Shaw  v.  U.  S.,  9  Ct.  of  CI.  301);  as 
by  substituting  the  assignor  (Cote  v.  U.  S.,  3  Ct.  of 
CI.  64);  or  so  as  to  make  a  ward  party  on  his  coming 
of  age.  (Stanton  v.  U.  S.,  4  Ct.  of  CI.  456.)  So  on 
a  petition  to  recover  rent  due  on  installments,  a  party 
may  amend  so  as  to  include  the  entire  rent.  (Cross 
V.  U.  S.,  14  Wall.  479.)  If  a  claimant  sets  forth,  by 
way  of  petition,  a  plain  statement  of  the  facts  with- 
out technical  formality,  and  prays  relief,  either  in  a 
general  manner  or  in  an  altoi'uative  or  cumulative 
form,  the  court  should  give  to  hi.s  statement  a  liberal 
interpretation,  and  afford  him  such  relief  a.s  he  may 
show  himself  substantially  entitled  to.  (United  States 
V.  Behan,  110  U.  S.  338;  Clark  v.  United  States,  9.> 
U.  S.  539.)  The  court  of  claims,  in  deciding  upon  tlie 
rights  of  claimants,  is  not  bound  by  any  special  rules 
of  pleading.  (United  States  v.  Burns,  12  Wall.  246.) 
If  the  petition  shows  tliat  plaintiff's  claim  is  founded 
on  acts  of  officers  of  the  government,  which  are  au- 
thorized by  Congress,  it  is  immaterial  whether  the 
petition  claims  compensation  as  upon  an  implied  con- 
tract or  for  damages.  (Chappell  v.  United  States,  34 
Fed.   Kep.  673.) 

Who  may  petition.— If  a  chose  in  action  has  been 
assigned  the  assignor  may  sue  for  the  l)enefit  of  the 
assignee  (.lackson  v.  U.  S.,  1  Ct.  of  CI.  2(!0;  Crowell  v. 
Jackson,  6  Ct.  of  CI.  23);  l)ut  the  assignee  must  be 
connected  with  the  case  (Silvciliill  v.  V.  S.,  5  Ct.  of 
CI.  610);  and  the  connection  of  the  assignor  may  be 


1403  COURT  OF  CLAIMS— JURISDICTION,  §  673 

shown  by  his  verification,  or  by  warrant  of  attorney, 
or  by  proof  of  the  transfer.  (Silverhill  v.  U.  S.,  5  Ct. 
of  CI.  610.)  A  corporation  created  in  an  insurrection- 
ary State  may  petition  (U.  S.  v.  Insurance  Co.,  22 
Wall.  99);  and  if  joint  owners  join  they  may  amend 
so  as  to  serve  in  the  prayer  for  relief,  and  asli  for 
separate  judgment  on  the  merits.  (Mott  v.  U.  S.,  3 
Ct.  of  Ci.  218.)  A  feme  covert  under  the  laws  of  the 
State  may  file  a  petition  in  her  own  name.  (Stanton 
v.  U.  S.,  4  Ct.  of  CI.  456;  Meriwether  v.  U.  S.,  13  Ct. 
of  CI.  259.)  A  petition  may  be  filed  in  the  State  by  a 
guardian,  where  the  ward  has  his  domicile.  (Stanton 
V.  U.  S.,  4  Ct.  of  CI.  456.)  A  suit  may  be  brought  in 
the  name  of  the  party  in  whom  the  legal  title  is.  to  the 
use  of  the  party  to  whom  tlie  real  and  substantial 
ownership  has  passed.  (American  Tobacco  Co.'s  Case, 
32  Ct.  of  CI.  207.)  A  party  possessing  full  title  to  a 
vessel  in  law  is  the  proper  party  to  maintain  a  suit 
though  creditors  may  be  beneficiaries  and  have  a 
claim  upon  the  recovery.  (Ship  Ganges,  31  Ct.  of 
CI.  175.)  The  assignee  of  a  chose  in  action  not  a 
commercial  instrument  cannot  maintain  an  action  in 
his  own  name.  (U.  S.  v.  Gillis,  95  U.  S.  407;  Atocha 
V.  U.  S.,  17  Wall.  439;  Jackson  v.  U.  S.,  1  Ct.  of  CI. 
260;  Sines  v.  U.  S.,  1  Ct.  of  CI.  12;  Cote  v.  U.  S.,  3  Ci. 
of  CI.  64;  Johnston  v.  U.  S..  13  Ct.  of  CI.  217.)  If  the 
assignment  merely  transfers  a  part  interest  tlie  suit 
cannot  be  brought  to  the  use  of  assignee.  (Rains  v. 
U.  S.,  11  Ct.  of  CI.  048.)  The  provisions  of  this  sec- 
tion have  no  application  to  a  sale  prior  to  seizure  of 
captured  and  abandoned  property.  (Bates  v.  U.  S..  4 
Ct.  of  CI.  569.)  On  an  assignment  for  benefit  of  credi- 
tors the  trustees  may  prosecute  in  the  name  of  the  as- 
signor. '(Morgan  v.  U.  S.,  14  Ct.  of  CI.  319.)  If  a 
claimant  becomes  banlsrupt  the  assignee  may  prose- 
cute the  suit.  (Persons  v.  U.  S.,  8  Ct.  of  CI.  542.)  And 
a  purchaser  from  the  assignee  is  entitled  to  be  sub- 


§  672  COURT   OF   CLAIMS— JURISDICTION.  1-IU4 

stituted.  (Burke  v.  U.  S..  13  Ct.  of  CI.  231.)  A  party 
who  asserts  a  claim  must  prove  the  transfer,  and  the 
nature  and  extent  of  his  right.  (Tebbets  v.  U.  S..  5 
Ct.  of  CI.  0)07;  Crowell  v.  U.  S.,  6  Ct.  of  CI.  23.)  A 
decree  In  a  State  court,  appointing  a  receiver,' and  au- 
thorizing him  to  sue  in  the  court  of  claims,  has  no 
force  in  the  latter  court,  and  a  suit  by  him  will  be 
dismissed..  (HoAves  v.  U.  S..  24  Ct.  of  CI.  170.)  One 
who  is  not  a  party  to  a  contract,  either  originally  or 
by  substitution,  cannot  maintain  a  claim  before  the 
court  of  claims  for  compensation  under  it.  (Kellogg 
V.  U.  S.,  7  Wall.  3G1.)  Sovereignties,  corporations,  and 
individuals  or  aggregations  of  individuals  may  be 
parties  litigant.  (AVestern  Cherokee  Indian's  Case,  27 
Ct.  of  CI.  1.)  Where  the  administrator  of  the  original 
sufferer  obtains  the  consent  of  the  assignee  in  bank- 
ruptcy, he  may  be  substituted  as  claimant.  (Ship 
Concord,  27  Ct.  of  CI.  142.)  The  surety  of  a  defaulting 
contractor  who  completes  the  Avork  in  the  name  of 
his  principal  may  bring  a  suit  in  his  own  name  for  a 
balance  earned  by  his  principal.  (Hitchcock's  Case,  27 
Ct.  of  Ol.  1S5.)  In  Congressional  cases  where  there 
is  no  vested  legal  right  a  parent  may  prosecute  on 
behalf  of  his  child;  and  the  infant  on  coming  of  age 
may  be  substituted  to  prosecute  in  his  own  name. 
(Kirtley's  Case,  27  Ct.  of  CI.  348.)  Tlie  defendants 
by  pleading  a  general  traverse  admit  the  competency 
of  a  claimant  corporation  to  sue  in  its  corporate  ca- 
pacity.   ^Southern  Pacific  Co.'s  Case,  28  Ct.  of  CI.  77.) 

Interest  of  parties. — If  a  claimant  proceeds  alone 
when  jointly  interested  he  must  show  the  extent  of 
his  interest  (Headman  v.  U.  S.,  5  Ct.  of  CI.  640);  and 
although  there  are  two  contracts  yet  one  may  'file  the 
petition  alone  if  the  other  is  disqualified.  (U.  S.  v. 
P.uriis.  12  Wall.  240;  Fain  v.  U.  S.,  4  Ct.  of  CI.  237; 
Mildrini  v.  U.  S.,  7  Ct.  of  CI.  595.)  Several  parties 
may  join  in  a  petition  although  they  brought  it  in 


1405  COURT  OF  CLAIMS— JURISDICTION.  §  673 

severalty.  (Rutherford  v.  U.  S.,  1  Ct.  of  CI.  481.)  All 
who  have  an  interest  should  join  (Hale  v.  U.  S.,  Dev. 
01.  of  CI.  137);  but  if  they  have  separate  interests  they 
cannot  join  (Wilson  v.  U.  S.,  1  Ct.  of  CI.  318;  Parish 
V.  U.  S.,  1  Ct.  of  CI.  345),  and  a  change  of  parties  may 
be  allowed  to  sustain  and  protect  the  original  cause 
of  action.  (Bellocque  v.  U.  S.,  8  Ct.  of  CI.  493.) 
Where  the  party  who  brings  the  suit  possesses  some 
legal  relation  with  the  proper  party  the  court  has 
power  to  substitute  the  latter  after  the  jurisdictional 
period.  (Darenport's  Case,  31  Ct.  of  CI.  430;  Kelly's 
Case,  32  Ct.  of  CI.  227.)  But  where  a  person  neglects 
to  bring  Eis  action  and  suit  is  brought  in  mistake  of 
fact  by  one  purporting  to  be  his  administrator,  he 
cannot  take  advantage  of  the  unauthorized  suit. 
(Tryon's  Case,  32  Ct.  of  CI.  425.)  If  two  persons  join 
when  only  one  is  entitled  to  the  claim,  the  petition 
may  be  amended  by  striking  out  the  name  of  the  other 
party.  (Molina  v.  U.  S.,  6  Ct.  of  CI.  269.)  If  claim- 
ants are  partners  the  disloyalty  of  one  partner  defeats 
the  action.  (Schreiner  v.  U.  S.,  6  Ct.  of  CI.  359.)  A 
partner  cannot  intervene  and  claim  the  same  property 
as  that  claimed  by  the  firm.  (Bellocque  v.  U.  S.,  8 
Ct.  of  CI.  493.)  Although  one  person  is  a  member  of 
two  separate  firms  yet  the  firms  cannot  unite  in  one 
petition.  (Parish  v.  U.  S.,  1  Ct.  of  CI.  345.)  If  a  feme 
covert  and  her  husband  file  a  joint  petition,  and  he 
dies,  she  may  prosecute  alone  in  her  own  name  (Rod- 
din  V.  U.  S.,  6  Ct.  of  CI.  308);  and  where  the  husband 
is  sole  owner  of  the  claim  the  name  of  the  wife  may 
be  stricken  out.  (Benton  v.  U.  S..  5  Ct.  of  CI.  692.) 
If  a  person  claims  money  not  already  claimed  he  may 
intervene  in  the  pending  suit.  (Mezeix  v.  U.  S.,  6  Ct. 
of  CI.  232;  Turner  v.  U.  S.,  2  Ct.  of  CI.  390.)  On  a  pe- 
tition by  a  firm  claiming  certain  property  a  partner 
cannot  intervene  and  claim  the  same  property.  (Bel- 
locque v.  U.  S.,  8  Ct.  of  CI.  493.)  If  a  person  files  a 
Fed.  Proc— 118. 


§  672  COURT  OF  CLAIMS— JURISDICTION.  1406 

petition  to  recover  bonds  alleged  to  be  illegally  held 
by  others,  the  service  of  citation  will  not  bring  the 
parties  within  the  jurisdiction  unless  they  come  in 
voluntarily  and  prosecute  a  cross-action.  (Texas  v. 
U.  S..  7  Ct.  of  CI.  301.)  A  contractor  is  bound  by  the 
settlement  made  with  a  party  whom  he  permits  to  file 
a  petition  in  his  name.    (Stowe  v.  U.  S.,  19  Wall.  13.) 

Claim  by  agent. — Although  an  agent  makes  a  con- 
tract in  his  own  name  without  disclosing  his  principal, 
yet  the  principal  may  petition  in  his  own  name 
(Ramsdell  v.  U.  S.,'  2  Ct.  of  CI.  508)  or  the  petition  may 
be  filed  in  the  name  of  the  agent  for  the  use  of  the 
principal  (Ramsdell  v.  U.  S.,  2  Ct.  of  CI.  508);  and  it 
may  be  amended  to  show  that  the  action  is  prosecuted 
for  the  use  of  another  (Shaw  v.  U.  S.,  9  Ct.  of  CI.  301); 
and  when  an  action  is  brought  in  the  name  of  one 
person  for  the  use  of  another,  the  money  is  paid  to 
the  real  party  in  interest.  (Crowell  v.  U.  S.,  6  Ct.  of 
CI.  23.) 

Attorneys  in  court  of  claims. — A  partner  of  a  firm 
cannot  have  his  attorney  associated  with  the  attorney 
of  the  firm.  (Bellocque  v.  U.  S.,  8  Ct.  of  CI.  493.)  An 
assignee  in  bankruptcy  succeeding  a  claimant  may 
discharge  an  attorney  upon  paying  his  disbursements. 
(Johnson  v.  U.  S.,  11  Ct.  of  CI.  724.)  If  petitioner  de- 
sires to  change  his  attorney  he  must  repay  all  dis- 
bursemei-  s  and  give  his  attorney  a  lien  for  his  fees 
(Desmare  v.  U.  S.,  9  Ct.  of  CI.  1;  Carver  v.  U.  S..  7 
Ct.  of  CI.  499);  and  an  executor  or  administrator  can 
only  change  the  attorney  on  the  usual  terms.  (John- 
son V.  U.  S.,  11  Ct.  of  CI.  724.)  A  client  may  change 
his  attorney  and  employ  other  counsel.  (Carver  v.  U. 
S.,  7  Ct.  of  CI.  499.)  A  court  of  claims  "may  authorize 
a  compensation  to  counsel  of  an  Indian  tribe  out  of 
the  amount  recovered  by  it  of  the  government. 
(United  States  v.  Blackfeather,  155  U.  S.  180.)    Coun- 


1407  COURT  OF   CLAIMS— JURISDICTION.  §  672 

sel  are  members  of  the  bar  retained  by  the  attorney 
of  record  to  assist  in  the  preparation  of  a  case  or 
argue  it  before  the  court.  Their  services  and  respon> 
sibilities  are  individual;  a  law  firm  cannot  be  recog- 
nized as  counsel.  The  attorney  of  record  is  the  only 
agency  recognized  by  the  court  in  the  control  of  the 
case.  (Matter  of  Counsel,  32  Ct.  of  CI.  231.)  A  re- 
tired officer  cannot  act  as  attorney  in  suits  against 
the  government.  (In  re  Winthrop,  31  Ct.  of  CI.  35.) 
Counsel  can  neither  make  motions  in  their  own  name 
nor  in  the  name  of  the  attorney  of  record  without  his 
authority.        (Matter  of  Counsel,  32  Ct.  of  CI.  231.; 

Commingling  of  rights. — If  the  goods  of  several 
owners  are  commingled  the  claims  of  the  several 
claimants  may  be  consolidated.  (U.  S.  v.  Raymond, 
92  U.  S.  G51;  Woodrufe  v.  U.  S.,  4  Ct.  of  CI.  486.)  So 
if  assignees  of  vouchers  under  one  contract  bring 
separate  suits  they  may  be  consolidated.  (Crowell 
V.  U.  S.,  6  Ct.  of  CI.  23.)  If  the  suits  of  several  claim- 
ants are  united  the  first  claimant  will  have  to  make 
out  his  claim  against  the  United  States  only,  and  the 
junior  claimant  will  have  to  make  his  title  good 
against  first  claimant.  (Woodrulf  v.  U.  S.,  4  Ct.  of 
CI.  486.)  If  suits  for  the  same  fund  are  united  no 
testimony  can  be  used  unless  the  party  has  had  an 
opportunity  to  cross-examine  the  witness.  (Woodruff 
V.  U.  S.,  4  Ct.  of  CI.  486;  Boyd  v.  U.  S.,  9  Ct.  of  CI.  419.) 

Pleading.— The  pleadings  need  not  present  a  single 
issue;  the  substance  rather  than  the  technicalities  will 
be  regarded.  iPeirce  v.  U.  S.,  1  Ct.  of  CI.  195;  Bentoa 
V.  U.  S.,  5  Ct.  of  CI.  602;  Baird  v.  U.  S.,  8  Ct.  of  CL 
13.)  Where  the  objection  goes  to  the  jurisdiction  it 
should  be  taken  by  plea  (Peirce  v.  U.  S.,  1  Ct.  of  CI. 
195;  Fenn.  Co.  v.  U.  S.,  7  Ct.  of  CI.  401),  and  such 
plea  may  be  filed  after  the  general  issue.  (Peirce  v. 
U.  S.,  1  Ct.  of  CI.  195);  but  where  the  objection  goes 


§  673  COUKT  OF  CLAIMS— JURISDICTION.  1408 

to  the  right  of  the  claimant  to  recover,  it  should  be 
talven  by  demurrer  or  plea  (Penn.  Co,  v.  U.  S.,  7  Ct. 
of  CI.  401);  and  a  special  demurrer  cannot  allege  a 
fact  not  stated  in  the  petition.  (Graham  v.  U.  S., 
1  Ct.  of  CI.  183.)  If  a  traverse  has  been  filed  a  plea 
to  the  jurisdiction  should  not  be  filed  without  leave 
of  court.  (Peirce  v.  U.  S.,  1  Ct.  of  CI.  195.)  If  the 
United  States  does  not  traverse  an  allegation  of  loy- 
alty it  will  be  presumed  true  (Hill  v.  U.  S.,  8  Ct.  of 
CI.  470);  and  if  it  files  a  general  traverse  that  it  is 
not  verified  it  waives  the  want  of  verification.  (Grif- 
fin V.  U.  S.,  13  Ct.  of  CI.  257.)  A  traverse  requires 
claimant  to  establish  all  material  allegations  by  proof. 
(Calkins  v.  U.  S.,  1  Ct.  of  CI.  382.) 

Verification  of  petition.^If  the  petition  is  not  ver- 
ified, a  motion  may  be  made  to  dismiss  it  (Griffin 
V.  U.  S.,  13  Ct.  of  CI.  257);  or  an  amended  petition 
properly  verified  may  be  filed.  (Griffin  v.  U.  S.,  13 
Ct.  of  CI.  257.)  If  the  assignor  dies  pendente  lite 
the  verification  of  his  executor  to  an  amended  peti- 
tion sufficiently  connects  him  with  the  case.  (Pullen 
V,  U.  S.,  7  Ct.  of  CI.  507.)  If  a  petition  presented 
by  a  firm  avers  a  joint  title,  and  is  verified  by  one 
partner,  judgment  will  be  rendered  in  favor  of  the 
fii-m.    (Pvichmond  r.  U.  S.,  7  Ct,of  CI.  533.) 

Evidence. — If  there  is  an  omission  to  furnish  cer- 
tain proof  the  case  may  be  remanded  for  further 
proof  even  after  final  hearing  (Kirby  v.  U.  S.,  3  Ct. 
of  CI.  2G5;  Daniels  v.  U.  S.,  5  Ct.  of  CI.  65;  Malian  v. 
U.  S.,  5  Ct.  of  CI.  331;  Fendall  v.  U.  S.,  12  Ct.  of  CI. 
80.5);  but  it  would  not  be  remanded  where  there  is  a 
confiict  of  testimony.  (Crowell  v.  U.  S.,  6  Ct.  of  CI. 
23;  Shrewsbury  v.  U.  S.,  13  Ct.  of  CI.  1S3.)  Where  a 
case  is  remauded  for  further  proof  either  party  may 
take  further  testimony  on  every  fact  (Culliton  v.  U. 
S.,  5  Ct.  of  CI.  G27);  and  a  witness  may  be  re-exam- 


1409  COUKT  OF  CLAIMS— JURISDICTION.  §§  673-674 

ined.  (Gaitlier  v.  U.  S.,  3  Ct.  of  CI.  191.)  If  there 
are  documents  that  are  not  competent  evidence  the 
case  may  be  remanded  to  give  opportunity  to  stip- 
ulate concerning  them.  (Lender  v.  U.  S.,  5  Ct.  of  CI. 
544.) 

Dismissal  of  suit.— The  claimant  cannot  dismiss  hi3 
own  suit  until  he  has  discharged  his  attorney  with 
permission  of  the  Court;  and  when  he  has  wrongfully 
brought  several  actions  for  the  same  cause  he  can 
elect  which  one  he  will  prosecute.  (Kedfield's  Case, 
27  Ct.  of  CI.  473.) 

§  673.  Petition,  when  dismissed. — The  said  al- 
legations as  to  true  allegiance  and  voluntary  aid- 
ing, abetting,  or  giving  encouragement  to  rebellion 
against  the  government  may  be  traversed  by  the 
government,  and  if  on  the  trial  such  issues  shall 
be  decided  against  the  claimant,  his  petition  shall 
be  dismissed.     (Eev.  Stats,  sec.  1073.) 

Note.— Where  a  person  struggling  to  maintain  his 
legal  right  to  his  slaves  voluntarily  continued  his 
domicile  within  the  territory  of  the  power  devoted  to 
the  maintenance  of  slavery,  it  may  be  inferred  that 
he  desired  its  success  and  was  not  loyal  in  fact.  (Aus- 
tin V.  United  States,  25  Ct.  of  CI.  437.) 

§  674.  Burden  of  proof  and  evidence  as  to  loy- 
alty.— Whenever  it  is  material  in  any  claim  to 
ascertain  whether  any  person  did  or  did  not  give 
any  aid  or  comfort  to  the  late  rebellion,  the  claim- 
ant asserting  the  loyalty  of  any  such  person  to  the 
United  States  during  such  rebellion  shall  be  re- 
quired to  prove  affirmatively  that  such  person  did, 
during  s^dd  rebellion,  consistently  adhere  to  the 


§  674  couET  or  claims— jurisdiction.  1410 

United  States,  and  did  give  no  aid  or  comfort  to 
persons  engaged  in  such  rebellion;  and  the  volun- 
tary residence  of  any  such  person  in  any  place 
where,  at  any  time  during  such  residence,  the  rebel 
force  or  organization  held  sway,  shall  be  prima 
facie  evidence  that  such  person  did  give  aid  and 
comfort  to  said  rebellion,  and  to  the  persons  en- 
gaged therein.     (Eev.  Stats,  sec.  1074.) 

Note.— An  express  proviso  iu  a  private  act,  that  it 
be  shown  "to  the'  satisfaction  of  the  court"  that 
neither  tEe  owner  nor  any  of  his  surviving  represen- 
tatives gave  any  aid  or  comfort  to  the  late  rebellion, 
but  "were  throughout  the  war  loyal  to  the  govern- 
ment," means  that  tliey  must  have  been  loyal  in  fact, 
and  not  merely  have  legal  loyalty  derived  from  the 
proclamation  of  general  amnesty.  (Austin  v.  United 
States,  25  Ct.  of  CI.  437.) 

Aid  and  comfort.— To  constitute  "aid  and  comfort" 
to  persons  engaged  in  the  rebellion  the  acts  must  have 
been  committed  with  ihe  intention  of  aiding  the  rebel- 
lion (Grossmeyer  v.  U.  S.,  4  Ct.  of  CI.  1);  and  that  the 
aid  and  comfort  was  given  must  be  shown  (Hill  v. 
U.  S.,  3  Ct.  of  CI.  470),  and  any  acts  which  tend  to 
assist,  countenance,  or  encourage  constitute  the  aid 
and  comfort.  (Bond  v.  U.  S.,  2  Gt.  of  CI.  528;  Bates 
V.  U.  S.,  4  Gt.  of  CI.  569.)  So,  engaging  in  the  rebel- 
lion was  aid  to  it  (Ga-ossmeyer  v.  U.  S.,  65  Ct.  of  CI.  1); 
or  serving  on  the  reseiwed  force  if  he  could  have 
avoided  it  (Kuper  v.  U.  S..  3  Ct.  of  CI.  74);  or  being 
voluntarily  connected  with  a  violation  of  the  block- 
ade (Bates  V.  U.  S.,  4  Ct.  of  CI.  560);  but  not  unless 
the  adventure  was  put  afloat.  (Hill  v.  U.  S.,  8  Ct.  of 
CI.  470.)  So  becoming  surety  on  an  official  bond  of  a 
military  officer  of  the  rebellion  is  aid  to  the  rebellion 
(U.  S.  v.  Padelford,  9  Wall.  531),  or  selling  goods  to 


1411  COURT   OF  CLAIMS— JURISDICTION.  §  674 

an  agent  of  the  rebel  government  (Carlisle  v.  U.  S., 
16  Wall.  147);  but  offers  and  acts  of  affection  and 
humanity  by  persons  to  individuals  engaged  in  the 
rebellion  do  not  come  within  the  interdiction  of  the 
statute.  (Grossmeyer  v.  U.  S.,  4  Ot.  of  01.  1.)  A 
claimant  is  entitled  to  prosecute  if  the  aid  and  com- 
fort were  not  voluntarily  given  (U.  S.  v.  Padelford,  9 
Wall.  531);  so  taxes  paid  under  compulsion  do  not  con- 
stitute aid  and  comfort  to  the  rebellion.  (Grossmeyer 
V.  U.  S.,  4  Ct.  of  CI.  1.)  If  claimant  is  a  mere  trus- 
tee he  must  make  proof  of  the  loyalty  of  the  bene- 
ficiaries of  the  trust  (Stoddart  v.  U.  S.,  6  Ct.  of  CI. 
230);  but  if  an  administrator  was  owner  of  the  prop- 
erty at  the  time  of  capture  or  abandonment,  his  right 
to  recover  the  proceeds  depends  on  his  own  loyalty. 
(Carrol  v.  U.  S.,  13  Wall.  151.) 

Proof  of  loyalty.— Tills  section  does  not  essentially 
change  the  nature  of  proof  required  by  prior  statutes. 
(IT.  S.  V.  Padelford,  9  Wall.  531;  Grossmeyer  v.  U.  S., 
4  Ct.  of  CI.  1.)  If  claimant  has  not  obtained  a  par- 
don he  must  prove  his  loyalty.  (U.  S.  v.  Bums,  12 
Wall.  246;  Patterson  v.  U.  S.,  6  Ct.  of  CI.  40;  Deeson 
v.  U.  S.,  6  Ct.  of  CI.  227;  S.  C,  5  Ct.  of  CI.  626.)  And 
very  slight  evidence  is  sufficient  to  establish  the  loy- 
alty of  a  colored  citizen  of  the  rebel  States.  (Thomas 
V.  U.  S.,  3  Ct.  of  CI.  52;  Dereef  v.  U.  S.,  3  Ct.  of  CI. 
1(53.)  Evidence  of  any  act  which  tended  to  support 
the  rebellion  where  no  other  motive  is  apparent  is  evi- 
dence of  bad  intention.  (Grossmeyer  v.  U.  S.,  4  Ct.  of 
CI.  1.)  An  alien  need  not  prove  that  he  did  not  ad- 
here to  the  United  States;  it  is  sufficient  that  he  ob- 
served a  neutral  course  (Rothschild  v.  U.  S.,  6  Ct.  of 
CI.  204),  and  his  residence  in  a  foreign  county  raises 
the  presumption  that  he  preserved  his  neutrality. 
(Hill  V.  U.  S.,  8  Ct.  of  Ol.  470.)  The  presumption  of 
loyalty  is  in  favor  of  one  who  was  citizen  and  resi- 


§  674  COURT  OF  CLAIMS— JURISDICTION.  1412 

dent  of  a  loyal  State.  (Turner  v.  U.  S.,  3  Ct.  of  CI. 
400.)  In  aJl  congressional  cases  loyalty  or  disloyalty 
is  a  fact  which  may  be  shown  by  either  party.  In 
cases  for  stores  and  supplies  loyalty  is  jurisdictional. 
When  jurisdictional,  the  court  cannot  looli  beyond  the 
petition  to  ascertain  whose  loyalty  must  be  estab- 
lished. If  the  loyalty  of  the  right  party  is  not  estab- 
lished on  the  preliminary  inquii'y,  the  case  will  fail 
when  heard  on  the  merits.  (Kirtley's  Oase,  27  Ct. 
of  CI.  348.  ) 

Effect  of  pardon.— The  proclamation  of  pardon  and 
amnesty  relieves  the  claimant  who  is  within  its 
terms  from  the  necessity  to  prove  that  he  gave  no  aid 
to  the  rebellion.  (Armstrong  v.  U.  S.,  13  Wall.  154; 
Pargoud  v.  U.  S.,  13  Wall.  156;  Carlisle  v.  U.  S.,  16 
Wall.  147;  Haym  v.  U.  S.,  7  Ct.  of  CI.  443;  Waring  v. 
U.  S.,  7  Ct.  of  CI.  504;  but  see  Mills  v.  U.  S.,  6  Ct.  of 
CI.  253.)  So  taking  the  oath  of  amnesty  blots  out  the 
ofeense.  (U.  S.  v.  PadeJford,  9  Wall.  531;  U.  S.  v. 
Klein,  13  Wall.  128;  Hamilton  v.  U.  S.,  7  Ct.  of  Ol. 
444;  Backer  v.  U.  S.,  7  Ct.  of  CI.  551;  Hardie  v.  U.  S., 
8  Ct.  of  CI.  316;  but  see  Brocket  v.  U.  S.,  2  Ct.  of  CI.  ■ 
213.)  If  the  owner  died  before  issuance  of  the  proc- 
lamation, the  administrator  cannot  recover  unless  he 
proves  decedent  did  not  give  aid  and  comfort  to  the 
rebellion.  (Meldran  v.  U.  S.,  7  Ct.  of  CI.  595;  Scott  v. 
U.  S.,  8  Ct.  of  CI.  457:  Sierra  v.  U.  S.,  9  Ct.  of  CI.  224.) 
If  the  pardon  is  conditioned  upon  taking  an  oath,  he 
is  not  entitled  to  its  benefit  until  the  oath  is  taken 
(Waring  v.  U.  S.,  7  Ct.  of  CI.  501),  and  taking  it  be- 
fore the  granting  of  the  pardon  is  not  sufficient. 
(Haym  v.  U.  S.,  7  Ct.  of  CI.  443.)  An  alien  domiciled 
within  the  United  States  is  within  the  terms  of  the 
proclamation.  (Carlisle  v.  U.  S.,  16  Wall.  147;  Green 
V.  U.  S.,  8  Ct.  of  CI.  412.)  The  pardon  granted  by  the 
president  prior  to  Revised  Sta^tutes,  section  3480,  did 
not  authorize  payment  of  a  claim   to  such   person 


1 


1413  COURT  OF  CLAIMS— JUKISDICTION.  §  675 

wliich  originated  prior  to  April  13,  1861.  Tlie  court 
has  no  jurisdiction  furtlier  than  to  find  the  facts. 
(Hart  V.  United  States,  118  U.  S.  62.)  A  condition  in 
a  pardon  forbidding  a  claim  to  any  property,  or  the 
proceeds  of  any  property,  sold  under  the  confiscation 
laws,  does  not  preclude  application  to  the  court  for 
the  proceeds  of  a  money  bond  secured  by  a  confis- 
cated mortgage.  (Osborn  v.  United  States,  91  U.  S. 
474.) 

§  675.  Commissioners  to  take  testimony. — The 
court  of  claims  shall  have  power  to  appoint  com- 
missioners to  take  testimony  to  be  used  in  the  in- 
vestigation of  claims  which  come  before  it;  to  pre- 
scribe the  fees  which  they  shall  receive  for  their 
services,  and  to  issue  commissions  for  the  taking 
of  such  testimony,  whether  taken  at  the  instance 
of  the  claimant  or  of  the  United  States.  (Rev. 
Stats,  sec.  1075.) 

Testimony  admissible.— Testimony  to  be  used  in 
the  court  of  claims  must  be  taken  by  deposition 
(Hughes  V.  U.  S.,  4  Ot.  of  CI.  64);  and  ex  parte  affi- 
davits cannot  be  used  (Wiggins  v.  U.  S.,  2  Ot.  of  CI. 
345);  although  transmitted  with  the  petition  to  Con- 
gress. (Clark  V.  U.  S.,  1  Ct.  of  CI.  246;  McKee  v.  U. 
S.,  1  Ct.  of  CI.  336;  Wilde  v.  U.  S.,  7  Ct.  of  CI.  415.) 
In  the  court  of  claims  the  common-law  rules  govern 
unless  a  different  rule  be  prescribed  by  statute.  (Al- 
len's Case,  28  Ct.  of  CI.  141.) 

CommissiorL. — The  application  for  the  issue  of  a 
commission  may  be  made  at  any  time  before  the  trial 
(Atocha  V.  U.  S.,  6  Ct.  of  CI.  95),  and  when  made  an 
order  is  entered  by  the  clerk  as  of  course  (Gibbons 
V.  U.  S..  Dev.  Ct.  CI.  138;  Mahan  v.  U.  S.,  6  Ct.  of  CI. 
331),  and  whether  its  issuance  will  lead  to  a  post- 


§675  COURT  OF  CLAIMS— J  UKISDICTION.  1414 

ponement  is  to  be  determined  by  the  facts  of  the  case. 
(Atocha  V.  U.  S.,  6  Ct.  of  CI.  95.)  The  court  of  claims 
may  refer  to  a  special  commissioner  to  S'tate  the  ac- 
counts, marshal  the  assets,  and  adjust  the  losses  be- 
tween the  different  owners  of  inter  mingled  cotton; 
and  the  judgment  on  such  report  and  o.ther  evidence 
is  valid.  (.Intermingled  Cotton  Cases,  92  U.  S.  631.) 
When  a  witness  lives  in  the  District  of  Columbia,  his 
testimony  may  be  taken  in  court  or  before  a  commis- 
sioner; when  at  a  distance  it  must  be  taken  by  com- 
mission.    (Etling's'Case,  27  Ct.  of  Ol.  158.) 

Depositions. — The  deposition  must  state  what  the 
witness  testiflee  to  in  the  presence  of  all  the  pai-ties. 
and  additions  made  in  the  absence  of  an  attorney  of 
one  of  the  parties  will  be  stricken  out.  (Shrewsbury 
V.  U.  S.,  9  Ct.  of  CI.  333.)  It  should  be  read  over  to 
and  be  signed  by  the  witness.  (Martin  v.  U.  S.,  3  Ct. 
of  CI.  384.)  If  the  commissioner  writes  it  out  from 
his  phonographic  notes,  and  then  attaches  a  loose 
sheet  bearing  the  signature  of  the  witness,  it  will  be 
suppressed.  (Martin  v.  U.  S.,  3  Ct.  of  CI.  3»4.)  The 
sheets  of  a  deposition  should  be  so  connected  as  that 
they  cannot  be  tarai>ered  with,  and  each  sheet  should 
be  signed  by  the  commissioner  and  the  witness.  (Mar- 
tin V.  U.  S.,  3  Ct.  of  CI.  384.) 

Examination  of  witness. — Olijections  which  go 
merely  to  the  form  of  a  question  should  be  taken  at 
the  examination  (Hughes  v.  U.  S.,  4  Ct.  of  CI.  &4); 
so  of  objections  to  parol  evidence  of  the  contents  of  a 
written  instrument  (Hughes  v.  U.  S.,  4  Ct.  of  CI.  &4); 
but  if  the  deposition  is  taken  upon  written  inteiToga- 
tories.  and  the  witness  states  the  contents  of  a  writ- 
ten paper,  the  objectiion  may  be  made  after  tlie  re- 
turn of  the  deposition  (Hughes  v.  U.  S.,  4  Ot.  of  CI. 
64);  and  oljjections  which  go  merely  to  the  manner  of 
taking  the  testimony  must  be  made  before  the  hear- 


1415  COURT  OF  CLAIMS— JURISDICTION.  §§  676-678 

ing  (Hughes  v.  U.  S.,  4  Ct.  of  CI.  64);  but  if  they  go 
to  the  competency  or  relevancy  of  the  testimony, 
they  may  be  taken  at  the  hearing.  (Hughes  v.  U.  S., 
4  Ct.  of  CI.  64.)  The  I'ig'ht  to  examine  a  witness  is 
lost  after  one  examination,  and  if  a  pai'ty  requires  a 
re-examination  he  must  obtain  leave  of  the  court 
(Atocha  V.  U.  S.,  6  Ct.  of  CI.  95;  Mahan  v.  U.  S.,  6  Ct. 
of  CI.  ool);  and  if  he  neglects  to  apply  for  leave,  the 
admission  of  a  second  examination  is  within  the  dis- 
cretion of  the  court  (Mahan  v.  U.  S.,  6  Ct.  of  CI.  331); 
and  when  leave  is  granted  he  cannot  be  examined  on 
other  than  the  particular  point  specified.  (Sevier  v. 
U.  S.,  7  Ct.  of  CI.  388.) 

§  676.  Power  to  call  upon  departments  for  in- 
formation.— The  said  court  shall  have  power  to 
call  upon  any  of  the  departments  for  any  informa- 
tion or  papers  it  may  deem  necessary,  and  shall 
have  the  use  of  all  recorded  and  printed  reports 
made  by  the  committees  of  each  house  of  Con- 
gress, when  deemed  necessary  in  the  prosecution 
of  its  business.  But  the  head  of  any  department 
may  refuse  and  omit  to  comply  with  any  call  for 
information  or  papers  when,  in  his  opinion,  such 
compliance  would  be  injurious  to  the  public  inter- 
est.    (Eev.  Stats,  sec.  1076.) 

§  677.     When  testimony   not    to   be   taken. — 

When  it  appears  to  the  court  in  any  case  that  the 
facts  set  forth  in  the  petition  of  the  claimant  do 
no  furnish  any  ground  for  relief,  it  shall  not  be 
the  duty  of  the  court  to  authorize  the  taking  of 
any  testimony  therein.     (Eev.  Stats,  sec.  1077.) 

§  678.     Witnesses    not   excluded. — No    witness 


§  678  COUKT  OF  CLAIMS— JUKISDICTION.  1416 

shall  be  excluded  in  any  suit  in  the  court  of  claims 
on  account  of  color.     (Rev.  Stats,  sec.  1078.) 

Note.— Rev.  Stats.,  sec.  1079,  was  repealed  March  3, 
1887,  sec.  8;  24  U.  S.  Stats.  50(3.  TMs  section  was  held 
to  restore  the  common-law  rule  as  it  existed  before 
the  adoption  of  section  858.  (U.  S.  v.  Olark,  96  U.  S. 
37.)  But  it  does  not  prevent  the  United  States  from 
using  as  a  witness  to  defeat  a  claim  one  whose  inter- 
est is  adverse  to  the  claimant.  (Bradley  v.  U.  S.,  104 
U.  S.  442.) 

Exclusion  of  witnesses.— The  exclusion  In  this 
section  reaches  three  classes  of  persons:  the  claim- 
ant, the  person  who  has  transferred  the  claim  to  the 
claimant,  and  any  one  interested  in  the  event  of  the 
suit  (U.  S.  V.  Anderson,  9  Wall.  5G),  unless  he  testifies 
against  the  claim.  (Wood  v.  U.  S.,  10  Ct.  of  Ca.  395.) 
So  a  claimant  cannot  testify  in  his  own  favor  (Mc- 
Kee  V.  U.  S.,  1  Ct.  of  CI.  330;  Jones  v.  U.  S.,  1  Ct.  of 
CI.  383;  Stoddard  v.  U.  S.,  4  Ct.  of  CI.  511;  Brooke  v. 
U.  S.,  2  Ct.  of  CI.  180);  and  his  deposition  taken  be- 
fore the  adoption  of  this  section  cannot  be  used  in 
the  suit  (Hubbell  v.  U.  S.,  4  Ct.  of  CI.  37;  Waters  v. 
TJ.  S.,  4  Ct.  of  CI.  389);  but  if  a  corporation  is  claim- 
ant, the  trustees  are  competent  witnesses  (Hebrew 
Congregation  v.  U.  S.,  6  Ct.  of  CI.  241);  and  if  the  ti- 
tle or  right  of  claimant  to  relief  is  established  by 
other  evidence,  he  is  competent  to  prove  the  contents 
of  a  lost  package,  involved  in  his  title  and  claim  to 
reiief.  (U.  S.  v.  Clark,  96  U.  S.  37;  but  see  Christian 
V,  U.  S.,  7  Ct.  of  CI.  431.) 

Assignor  and  assignee.— The  United  States  may 
take  the  deposition  of  the  assignee  of  a  claim,  or  of 
a  person  interested  in  the  event  of  the  suit,  but  it  can- 
not be  used  to  support  a  claim  against  the  United 
States.     (Macauley  v.  U.   S.,  11  Ct.  of  CI.   575.)    A 


1417  COURT  OF  CLAIMS— JUKISDICTIOIS.  §  679 

person  Avho  sold  property  to  a  claimant  before  its 
capture  may  testify  in  favor  of  tlie  claimant.  (Gross- 
meyer  v.  U.  S.,  4  Ct.  of  CI.  1;  Scliarfer  v.  U.  S.,  4  Ct. 
of  Gl.  529;  U.  S.  v.  Anderson,  9  Wall.  56.)  If  a  coun- 
terclaim Is  filed  by  the  United  States  for  the  breach 
of  contract  a  surety  on  the  land  cannot  testify.  (Wood 
V.  U.  S.,  10  Ct.  of  CI.  395.) 

§  679.  Examination  of  claimant. — The  court 
may,  at  the  instance  of  the  attorney  or  solicitor  ap- 
pearing in  behalf  of  the  United  States,  make  an 
order  in  any  ease  pending  therein,  directing  any 
claimant  in  such  case  to  appear,  upon  reasonable 
notice,  before  any  commissioner  of  the  court,  and 
be  examined  on  oath  touching  any  or  all  matters 
pertaining  to  said  claim.  Such  examination  shall 
be  reduced  to  writing  by  said  commissioner,  and 
be  returned  to  and  filed  in  the  court,  and  may,  at 
the  discretion  of  the  attorney  or  solicitor  of  the 
United  States  appearing  in  the  case,  be  read  and 
used  as  evidence  on  the  trial  thereof.  And  if  any 
claimant,  after  such  order  is  made,  and  due  and 
reasonable  notice  thereof  is  given  to  him,  fails  to 
appear,  or  refuses  to  testify  or  answer  fully  as  to 
all  matters  within  his  knowledge  material  to  the 
issue,  the  court  may,  in  its  discretion,  order  that 
the  said  cause  shall  not  be  brought  forward  for 
trial  until  he  shall  have  fully  complied  with  the 
order  of  the  court  in  the  premises.  (Rev.  Stats. 
sec.  1080.) 

Note.— The  claimant  alone  can  be  held  responsible 

under  this  section.     (McCauley  v.  U.  S.,  11  Ct.  of  CI. 

575.)     The  provisions  of  this  section    shall    apply  to 

cases  under  the  act  of  24  U.  S.  Stats.,  supra.    The 

Fbd.  P.ijo.— l,  . 


§3  680-683  COURT  or  claims— jurisdiction.  1418 

right  of  the  government  to  examine  a  claimant  before 
trial  extends  to  Indian  depredation  cases;  the  appli- 
cation for  an  order  to  examine  a  claimant  may  be  ex 
parte,  and  no  special  ground  need  be  set  forth. 
(Truitt's  Case,  30  Ct.  of  CI.  19.) 

§  680.  Testimony  taken  where  deponent  re- 
sides.— Tlie  testimony  in  cases  pending  before  the 
court  of  claims  shall  he  taken  in  the  county  where 
the  witness  resides,  when  the  same  can  be  conven- 
iently done.     (Eev.  Stats,  sec.  1081.) 

§  681.     Witnesses,  how  compelled  to  attend. — 

The  court  of  claims  may  issue  sultpoenas  to  re- 
quire the  attendance  of  witnesses  in  order  to  be  ex- 
amined before  any  person  commissioned  to  take 
testimony  therein,  and  such  subpoenas  shall  have 
the  same  force  as  if  issued  from  a  district  court, 
and  compliance  therewith  shall  be  compelled  un- 
der such  rules  and  orders  as  the  court  shall  estab- 
lish.    (Rev.  Stats,  sec.  1082.) 

§  682.  Cross-examination. — In  taking  testi- 
mony to  lie  used  in  support  of  any  claim  opportu- 
nity shall  be  given  to  the  United  States  to  file  in- 
terrogatories, or  by  attorneys  to  examine  witnesses, 
under  such  regulations  as  said  court  shall  pre- 
scribe; and  like  opportunity  shall  be  afforded  the 
claimant,  in  cases  where  testimony  is  taken  on  be- 
half of  the  United  States,  under  like  regulations. 
(Rev.  Stats,  sec.  1083.) 

^  683.  Witnesses,  how  sworn. — The  commis- 
sioner taking  tcstimtmy  to  be  used  in  the  court  of 


1419  COURT   OF  CLAIMS— JUKISDICTION.   §§  684-686 

claims  shall  administer  an  oath  or  affirmation  to 
the  witnesses  brought  before  him  for  examination, 
(Eev.  Stats,  sec.  1084.) 

§  684.  Fees  of  commissioner. — When  testi- 
mony is  taken  for  the  claimant,  the  fees  of  the 
commissioner  before  whom  it  is  taken,  and  the 
cost  of  the  commission  and  notice,  shall  be  paid  by 
such  claimant;  and  when  it  is  taken  at  the  instance 
of  the  government,  such  fees,  together  with  all 
postage  incurred  by  the  assistant  attorney  general, 
shall  be  paid  out  of  the  contingent  fund  provided 
for  the  court  of  claims,  or  other  appropriation 
made  by  Congress  for  that  purpose.  (Eev.  Stats, 
sec.  1085.) 

§  685.  Claims  forfeited  for  fraud. — Any  per- 
son who  corruptly  practices  or  attempts  to  practice 
any  fraud  against  the  United  Stales  in  the  proof, 
statement,  establishment,  or  allowance  of  any 
claim,  or  of  any  part  of  any  claim  against  the  Uni- 
ted States,  shall  ipso  facto  forfeit  the  same  to  the 
government;  and  it  shall  l)e  the  duty  of  the  court 
of  claims,  in  such  cases,  to  find  specifically  that 
such  fraud  was  practiced  or  attempted  to  be  prac- 
ticed, and  thereupon  to  give  judgment  that  such 
claim  is  forfeited  to  the  government,  and  that  the 
claimant  be  forever  barred  from  prosecuting  the 
same.     (Eev.  Stats,  sec.  1086.) 

§  686.     New   trial  on    motion    of    claimant. — 

When  judgment  is  rendered  against  any  claimaiit, 
the  court  may  grant  a  new  trial  for  any  reason 


§  686  COURT  OF  CLAIMS— JURISDICTION.  1420 

which,  by  the  rules  of  common  law  or  chancery 
in  suits  between  individuals,  would  furnish  suffi- 
cient ground  for  granting  a  new  trial.  (Rev. 
Stats,  sec.  1087.) 

New  trial— Claimant's  motion. — A  motion    for    a 
new  trial  suspends  the  judgment  and  continues  the 
ease  within  the  jurisdiction  of  the  court.     If  the  dei- 
cision  is  founded  on  a  mistal^e  of  law  claimant  may 
file  a  motion  for  review.     (Calhoun  v.  U.  S.,  14  Ct.  of 
CI.  193.)     So  if  judgment  is  entered  on  matters  not 
properly  in  evidence.     (Alvord  v.  U.  S.,  9  Ct.  of  CI. 
133.)    Where  there  has  been  no  oversight  or  misap- 
prehension a  decision  must  be  regarded  as  final,  un- 
less one  of  the  judges  desires  a  reargument.     (Pen- 
dall  V.  U.  S.,  12  Ct.  of  CI.  305.)     A  new  trial  cannot  be 
gi'anted  merely  because  the  amount  involved  is  too 
small  to  allow  an  appeal  (Deeson  v.  U.  S.,  6  Ct.  of  01. 
227);  nor  on  the  ground  of  newly  discovered  evidence, 
if  it  could  have  been  discovered  by  the  use  of  due 
diligence  (Garrison  v.  U.  S..  2  Ct.  of  CI.  382;  Arm- 
strong V.  U.  S.,  6  Ct.  of  CI.  226;  Deeson  v.  U.  S.,  6  Ct. 
of  CI.  227;  Bramhall  v.  U.  S.,  3  Ct.  of  CI.  2.38);  or  un- 
less it  is  made  to  appear  that  a  different  I'esult  would 
probably  be  reached.     (Garrison  v.  U.  S.,  2  Ct.  of  CI. 
382;  Bramhall  v.  U.  S.,  6  Ct.  of  CI.  238.)     The  mere 
fact  that  the  supreme  court  has  made  decisions  since 
ihe  judgment  that  miglit  entitle  claimant  to  a  judg- 
ment it  is  no  ground  for  granting  a  new  tinal.     (Bram- 
hall v.  U.  S.,  6  Ct.  of  CI.  238.)     Although  claimant  has 
no  right  to  demand  a  new  trial  for  a  mistake  in  the 
findings,  yet  the  error  may  be  corrected  while  the 
proceedings   are   under   control   of   the  court.     (Cal- 
houn V.  U.  S.,  14  Ct.  of  CI.  198;  Neal  v.  U.  S.,  14  Ct. 
of  CI.  477.)     An  order  dismissing  a  petition  will  not 
be  stricken  out  if  the  petition  shows  that  there  is  no 
jurisdiction  (Garcia  v.  U.  S.,  14  Ct.  of  CI.  121),  or  that 


1421  COUET   OF  CLAIMS— JUKISDICTION.  §  687 

diligence  to  prosecute  the  claim  has  not  been  used 
(Sehuffelin  t.  U.  S..  8  Ct.  of  CI.  359;  Pigh  v.  TJ.  S., 
3  Ct.  of  CI.  97);  and  a  judgment  will  not  generally  be 
set  aside  after  an  intervening  term.  (Figh  v.  U.  S., 
3  Ct.  of  CI.  97.)  If  the  record  is  in  possession  of  the 
court  an  allowance  of  an  appeal  may  be  stricken  out 
and  motion  for  new  trial  entertained.  (Ex  parte  Rob- 
erts, 15  Wall.  .384;  but  see  Stern  v.  U.  S.,  6  Ct.  of  CI. 
280;  Nutt  V.  U.  S.,  8  Ct.  of  CI.  185.)  Where  a  new 
trial  has  been  granted,  but  it  appears  from  the  new 
evidence  that  the  same  result  will  be  reached,  and 
the  same  findings  of  fact  made,  the  court,  instead  of 
requiring  a  second  trial,  will  vacate  the  order  allow- 
ing it.     (Grantham's  Case,  28  Ct.  of  CI.  528.) 

§  687.     New  trial  on  motion  of  United  States. — ■ 

The  court  of  claims,  at  any  time  while  any  claim 
is  pending  before  it,  or  on  appeal  from  it,  or  within 
two  years  next  after  the  final  disposition  of  such 
claim,  may,  on  motion  on  behalf  of  the  United 
States,  grant  a  new  trial  and  stay  the  payment  of 
any  judgment  therein,  upon  such  evidence,  cumu- 
lative or  otherwise,  as  shall  satisfy  the  court  that 
any  fraud,  wrong,  or  injustice  in  the  premises 
has  been  done  to  the  United  States;  but  until  an 
order  is  made  staying  the  payment  of  a  judgment, 
the  same  shall  be  payable  and  paid  as  now  provided 
by  law.     (Eev.  Stats,  sec.  1088.) 

New  trial — ^Motion  of  government.— Injustice  con- 
templated by  this  section  is  not  that  which  results 
from  mere  judicial  error;  it  must  be  such  as  Is  discov- 
ered after  rendition  of  judgment.  (Child  v.  U.  S.,  6 
Ct.  of  CI.  44.)  Under  this  section  the  court  of  claims 
has  power  to  grant  a  new  trial,  on  motion  on  behalf 
of  the  United  States,  at  a  term  subsequent  to  that  at 


§  687  COL'RT   OF  CLAIMS— JURISDICTION.  1422 

which  the  jiidjjnient  Avas  rendered.  (Belknap  v.  Unit- 
ed States,  150  U.  S.  588.)  If  a  motdon  for  new  trial  is 
filed  within  two  years  after  disposition  of  the  claim, 
action  may  be  talven  thereon  even  after  that  time 
(Bellocq  v.  U.  S.,  13  Ct.  of  CI.  195);  and  the  objection 
of  the  lapse  of  more  than  two  years  after  entry  of 
jiidg-ment  cannot  be  made  to  a  motion  for  a  continu- 
ance. (U.  S.  V.  Crusell,  12  Wall.  175.)  The  obligation 
to  use  diligence  falls  upon  the  officers  of  the  govern- 
ment who  are  charged  in  law  or  in  fact  with  its  de- 
fense. (Silvey  v.  U.  S.,  7  Ct.  of  CI.  305.)  The  final 
disi)osition  of  the  suit  is  to  date  from  the  final  ter- 
mination on  appeal,  If  appeal  is  talven,  and  if  none 
is  talien  then  from  its  final  determination  in  the  court 
of  claims.  (Ex  parte  Russell,  13  Wall.  6&4.)  The 
mere  filing  of  a  motion  for  new  trial  is  no  ground  for 
dismissing  an  appeal  (U.  S.  v.  Ayres,  9  Wall.  608);  the 
case  on  appeal  will  be  continued  to  await  the  deci- 
sion on  the  motion.  (U.  S.  v.  Crusell.  12  Wall.  175.) 
It  may  be  made  even  after  filing  a  mandate  affirming 
the  judgment  of  the  court  of  claims  (Ex  parte  Rus- 
sell, 13  Wall.  664;  Ex  parte  United  States,  16  Wall. 
099);  and  if  the  new  trial  be  granted,  the  appeal  will 
be  dismissed.  (U.  S.  v.  Ayres,  9  Wall.  608;  U.  S.  v. 
Young,  94  U.  S.  258.)  A  new  trial  will  be  granted  if 
the  new  evidence  is  prima  facie  sufficient  (Tait  v.  U. 
S.,  5  Ct.  of  CI.  638;  Ayers  v.  U.  S.,  5  Ct.  of  CI.  712; 
Douglass  v.  U.  S.,  11  Ct.  of  CI.  655);  but  it  will  not  be 
granted  unless  there  was  due  diligence  to  discover 
the  evidence  (Child  v.  U.  S.,  6  Ct.  of  CI.  44;  Silvey  v. 
U.  S.,  7  Ct.  of  CI.  305);  nor  if  the  new  evidence  would 
not  affect  the  result  (Child  v.  U.  S..  7  Ct.  of  CI.  305); 
nor  for  an  error  of  'aw  where  the  party  has  ample 
remedy  by  appeal  (Ealer  v.  U.  S.,  5  Ct.  of  CI.  708);  nor 
merely  to  eonti-adict  a  witness  upon  an  immaterial 
point.  (Silvey  v.  U.  S.  7  Ct.  of  CI.  305.)  The  evidence 
authorized  by  this  section  in  a  motion  by  the  govern- 


J4-23  COURT  OF  CLAIirS— JURISDICTION.  §  688 

meut  for  a  new  trial,  includes  testimony  taken  in  the 
form  of  question  and  answer.  (In  re  McKay,  30 
Ct.  of  CI.  1.)  The  court  of  claims  has  power  to  com- 
pel a  witness  to  appear  and  testify  in  regard  to  a 
motion  for  a  new  trial.  (In  re  McKay,  30  Ot.  of  CI. 
1.)  If  one  motion  has  been  denied  a  second  motion 
based  on  the  same  grounds  will  not  be  considered. 
(Child  V.  U.  S.,  6  Ct.  of  CI.  441.)  The  decision  grant- 
ing- a  new  trial  is  not  appealable.  (Young  v.  U.  S., 
95  U.  S.  641.)  Where  Congress  directed  the  court  of 
claims  to  rehear  a  claim  which  had  been  decided 
against  on  account  of  the  informality  of  the  papers, 
it  intended  that  such  court  should  wholly  disregard 
such  informality.  (Cross  v.  United  States,  14  Wall. 
479.)  Where  the  supreme  court  required  the  court  of 
claims  to  proceed  in  the  cause  remanded,  in  conform- 
ity to  law  and  justice,  the  court  of  claims  may  set 
aside  the  finding  of  facts  made  on  the  first  trial,  and 
try  the  case  de  novo.  (Ex  parte  Medway,  23  Wall. 
504.)  Where  the  court  of  claims  has  revoked  an  or- 
der for  the  allowance  of  an  appeal,  it  has  power  to 
hear,  entertain,  and  decide  a  motion  for  a  new  trial. 
(Ex  parte  Roberts.  15  Wall.  384.)  Public  officers  can- 
not open  and  re-examine  claims  against  the  govern- 
ment which  were  rejected  by  their  predecessoi's  in 
office,  in  the  absence  of  fraud,  mistake  in  matters  of 
fact  arising  from  eiToi's  in  calculations,  or  of  newly 
discovered  material  evidence.  (Waddell  v.  United 
States,  25  Ct.  of  CI.  000.)  They  have  the  right  to 
pay  into  the  treasury  the  disputed  moneys,  and  then 
seek  the  coui-ts  to  adjust  and  deterainie  their  claims 
against  their  superior  and  sovereign.  Such  payment 
is  not  an  estoppel  against  the  claimant.  (United 
States  V.  Mosby,  133  U.  S.  273.) 

§  688.     Payment  of  judgments. — In  all  cases  of 
final  judgments  by  the  court  of  claims,  or,  on  ap- 


§  689  COURT   OF  CLAIMS— JURISDICTION.  1424 

peal,  by  the  supreme  court,  where  the  same  are 
affirmed  in  favor  of  the  claimant,  the  sum  due 
thereby  shall  be  paid  out  of  any  general  appropri- 
ation made  by  law  for  the  payment  and  satisfac- 
tion of  private  claims,  on  presentation  to  the  secre- 
tary of  the  treasury  of  a  copy  of  said  judgment, 
certified  by  the  clerk  of  the  court  of  claims,  and 
signed  by  the  chief  justice,  or,  in  his  absence,  by 
the  presiding  judge  of  said  court.  (Eev.  Stats, 
sec.  1089.) 

Note.— The  payment  of  a  judgment  of  the  court  of 
claims  satisfies  the  demand  of  a  judgment  creditor 
against  the  United  States,  and  he  is  only  required  to 
enter  satisfaction  on  receipt  of  the  money.  (U.  S.  v. 
Frerichs,  124  U.  S.  315.)  Where  two  partners  recov- 
ered a  joint  judgment  against  the  United  States,  and 
it  paid  one-half  thereof  to  one  partner,  and  applied 
the  other  half  to  a  judgment  in  its  favor  against  the 
other  partner,  the  United  States  cannot  be  compelled, 
to  pay  it  over  to  them  jointly.  (Howes  v.  U.  S.,  24 
Ct.  of  CI.  170.) 

Private  claims  construed.— (Sweeney  v.  U.  S.,  5  Ct. 
of  CI.  285.) 

§  689.  Interest. — In  cases  where  the  judgment 
appealed  from  is  in  favor  of  the  claimant,  and  the 
same  is  affirmed  by  the  supreme  court,  interest 
thereon  at  the  rate  of  five  per  centum  shall  be  al- 
lowed from  the  date  of  its  presentation  to  the  sec- 
retary of  the  treasury  for  payment  as  aforesaid, 
but  no  interest  shall  be  allowed  subsequent  to  the 
affirmance,  unless  presented  for  payment  to  the 
secretary  of  the  treasury  as  aforesaid.  (Eev.  Stats. 
stc.  1090.) 


1125  COUKT  OF  CLAIMS— JUKISDIcriON.  §§  690-691 

Interest  on  judgments. — Provision  is  made  in  tiiis 
section  for  tlie  payment  by  government  of  interest  an 
its  debts.  (White  v.  Artliur,  10  Fed.  Rep.  83.)  Inter- 
est on  judgments  is  not  to  be  paid  unless  the  United 
States  has  appealed.  (White  v.  Arthui*,  10  Fed.  Rep. 
87;  see  U.  S.  v.  Jones,  131  U.  S.  1.)  The  provisions  of 
sections  1090  and  1091  of  the-  Revised  Statutes  are 
not  repealed  or  modified  by  section  10  of  the  act  of 
March  3,  1887;  and  the  latter  act  does  not  authorize 
the  i-ecovery  of  interest  on  judgments  from  the  time 
of  their  rendition  until  an  appropriation  is  made  for 
their  payment.  (United  States  v.  Barber,  41  U.  S. 
App.  424;  74  Fed.  Rep.  483.) 

§  690.  Interest  on  claims. — No  interest  shall 
be  allowed  on  any  claim  up  to  tlie  time  of  the  ren- 
dition of  judgment  thereon  by  the  court  of  claims, 
unless  upon  a  contract  expressly  stipulating  for  the 
payment  of  interest.     (Eev.  Stats,  sec.  1091.) 

Interest.— Unless  a  contract  stipulates  for  interest, 
interest  cannot  be  allowed  against  the  United  States 
(Tilson  V.  U.  S.,  100  U.  S.  43;  Todd  v.  U.  S.,  Dev.  Ct. 
CI.  175);  but  it  may  be  allowed  in  the  court  of  claims 
if  allowed  by  Congress  in  the  adjustment  of  like  cases. 
(U.  S.  V.  McKee,  91  U.  S.  442.)  Interest  may  be  al- 
lowed on  claims  against  proceeds  of  captured  and 
abandoned  property.  (Villalonga  v.  U,  S„  23  Wall. 
35.)  No  interest  can  be  allowed  except  upon  a  con- 
tract expressly  stipulating  for  interest.  (Harvey  v. 
U.  S.,  113  U.  S.  243;  Tilson  v.  U.  S.,  100  U.  S.  43.) 

§  691.  Payment  of  judgment  a  full  discharge, 
etc. — The  payment  of  the  amount  due  by  any 
judgment  of  the  court  of  claims  and  of  any  in- 
terest thereon  allowed  by  law,  as  hereinbefore  pro- 
vided, shall  be  a    full  discharge    to  the    United 


§§  692-693  COURT  of  claims— jurisbiction.  14'2l> 

States  of  all  claim  and  demand  touching  any  of  the 
matters  involved  in  the  controversy.  (Rev.  Stats, 
sec.  1U9^.) 

§  692.  Final  judgement  a  bar. — Any  final  judg- 
ment against  the  claimant  on  any  claim  prose- 
cuted as  provided  in  this  chapter  shall  forever  bar 
any  further  claim  or  demand  against  the  United 
States  arising  out  of  the  maifers  involved  in  the 
controversy.     (Rev.  Stats,  sec.  1093.) 

The  judgments  of  the  court  of  claims,  where  no  ap- 
peal is  takeu  to  this  cotirt.  are  absolutely  conclusive 
of  the  rights  of  the  parties,  and  are  not  subject  to  re- 
vision by  any  one  of  the  executive  depai'tnients. 
(United  States  v.  O'Grady,  22  Wall.  641.) 

Final  judgment. — The  provisions  of  this  section  re- 
late only  to  judgments  on  the  merits  (Spicer  v.  U.  S., 
5  Ct.  of  CI.  34);  but  tliough  erroneous  a  judgment  is  a 
bar  to  another  suit  (Osborn  v.  U.  S.,  19  Wall.  577):  but 
it  will  not  bar  a  subsequent  suit  for  a  different  cause 
of  action.  (Shrewsbury  v.  U.  S.,  18  Wall.  664;  9  Ct. 
of  CI.  263.)  So  a  judgment  on  one  petition  will  not 
bar  another  petition  for  rent  due  at  another  rime. 
(Cross  V.  U.  S.,  14  Wall.  479.)  The  judgment  in  an 
action  by  the  holder  of  negotiable  paper  against  in- 
dorsers  is  not  a  bar  to  a  subsequent  action  against 
tlie  maimer  not  notified  of  the  prior  suit.  (HailrcAiid 
('(I.  V.  National  Bank.  102  U.  S.  14;  see  United  States 
V.  Irwin,  127  U.  S.  12,").) 

§  693.  Claims,  etc.,  pending  before  Congress. — 
Whenever  a  claim  or  matter  is  pending  before  anv 
committee  of  the  Senate  or  House  of  Representa- 
tives, or  before  either  house  of  Congress,  which  in- 


1427  COUKT   OF  CLAIMS— JURISDICTION.  v  694 

Yolves  the  investigation  and  determination  of 
facts,  the  committee  or  house  may  cause  the  same, 
witli  the  voucliers,  papers,  prooi's,  and  documents 
pertaining  thereto,  to  be  transmitted  to  the  court 
of  claims  of  tlie  United  States,  and  the  same  shall 
there  be  proceeded  in  under  such  rules  as  the  court 
may  adopt.  When  the  facts  shall  have  been  found, 
the  court  shall  not  enter  judgment  thereon,  but 
shall  rejiort  the  same  to  the  committee,  or  to  the 
house  by  which  the  case  was  transmitted  for  its 
consideration.     (22  V.  S.  Stats.  485,  sec.  1.) 

Transmission  under  the  "Bowman  Act." — Where 
a  petitioner  in  Congress  seelts  the  passage  of  a  law 
which  will  enable  him  to  acquire  realty  whereof  the 
legal  title  is  vested  in  the  government,  upon  the  pay- 
ment of  such  sum  as  may  be  just  and  equitable,  the 
matter  may  be  transmitted  to  the  court  of  claims,  un- 
der the  Bowman  Act.  (Taylor  v.  United  States,  25 
Ct.  of  CI.  75.)  The  court  has  jnrisdiiction  to  find 
the  facts  in  a  claim  for  infringement  of  a  patent  re- 
ferred to  it  by  the  committee  on  claims  of  the  Sen- 
ate. (Forehand  v.  United  States.  Ct.  of  CI.,  17  Wash. 
L.  Rep.  37.)  Where  the  primary  purpose  of  a  military 
order  is  not  to  supply  the  army,  but  to  injure  the  ene- 
my, the  taking  is  an  act  of  war.  which  gives  the  own- 
ei's  no  right  to  relief  for  commissary  supplies  talven. 
(Conard  v.  United  States,  25  Ct.  of  CI.  433.)  Under 
the  Bowman  Act  it  is  the  duty  of  the  court  of  claims 
to  settle  the  ultimate  facts  so  that  Congress  may  as- 
sume them  as  a  basis  for  its  legislative  judgment  and 
discretion,  and  it  need  not  give  the  details.  (Moore 
V.  United  States,  25  Ct.  of  CI.  82.) 

§  694.     Claims    pending   in    executive    depart- 
ments.— When  a  claim  or  matter  is  pending  in  any 


§§  695-696  COURT  of  claims— jurisdiction.  142S 

of  the  executive  departments  which  may  involve 
controverted  questions  of  fact  or  law,  the  head  of 
such  department  may  transmit  the  same,  with  the 
vouchers,  papers,  proofs  and  documents  pertaining 
thereto,  to  said  court,  and  the  same  shall  there  he 
proceeded  in  under  such  rules  as  the  court  may 
adopt.  When  the  facts  and  conclusions  of  law 
shall  have  been  found,  the  court  shall  not  enter 
judgment  thereon,  but  shall  report  its  findings  and 
opinions  to  the  department  by  which  it  was  trans- 
mitted, for  its  guidance  and  action.  (22  U.  S. 
Stats.  485,  sec.  2.) 

§  695.     Claims  not  within  jurisdiction  of  court. 

■ — The  jurisdiction  of  said  court  shall  not  extend  to 
or  include  any  claim  against  the  United  States 
growing  out  of  tlie  destruction  or  damage  to  prop- 
erty by  the  army  or  navy  during  the  war  for  the 
suppression  of  the  rebellion,  or  for  the  use  and  oc- 
cupation of  real  estate  by  any  part  of  the  military 
or  naval  forces  of  the  United  States  in  the  opera- 
tions of  said  forces  during  the  paid  war  at  the  seat 
of  war;  nor  shall  the  said  court  have  jurisdiction 
of  any  claim  against  the  United  States  which  is 
now  barred  by  virtue  of  the  provisions  of  any  law 
of  the  United  States.     (22  U.  S.  Stais.  485,  sec.  3.) 

§  696.  Claims  for  supplies,  etc. — In  any  case  of 
a  claim  for  sup])!i('S  or  stores  taken  by  or  furnished 
to  any  part  of  military  or  naval  forces  of  the  Uni- 
ted States  for  their  use  during  the  late  war  for 
the  suppres.sion  of  the  rebellion,  the  petition  shall 


1429  COUKT   OF  CLAIMS— JURISDICTION.   §§  697-698 

aver  that  the  person  who  furnished  such  supplies 
or  stores,  or  from  whom  such  supplies  or  stores 
were  taken,  did  not  give  any  aid  or  comfort  to 
said  rebellion,  but  was  throughout  that  war  loyal 
to  the  government  of  the  United  States,  and  the 
fact  of  such  loyalty  shall  be  a  jurisdictional  fact; 
and  unless  the  said  court  shall,  on  a  preliminary 
inquiry,  find  that  the  person  who  furnished  such 
supplies  or  stores,  or  from  whom  the  same  were 
taken  as  aforesaid,  was  loyal  to  the  government 
of  the  United  States  throughout  said  war,  the 
court  shall  not  have  jurisdiction  of  such  cause,  anc? 
the  same  shall,  without  further  proceedings,  be  dis- 
missed.    (22  U.  S.  Stats.  485,  sec.  4.) 

§  697.     Defense,  etc.,  for  the  United  States. — 

The  attorney  general,  or  his  assistants  under  his 
direction,  shall  appear  for  the  defense  and  protec- 
tion of  the  interests  of  the  United  States  in  all 
cases  which  may  be  transmitted  to  the  court  of 
claims  under  this  act,  with  the  same  power  to  in- 
terpose counter-claims,  offsets,  defenses  for  fraud 
practiced  or  attempted  to  be  practiced  by  claim- 
ants, and  other  defenses,  in  like  manner  as  he  is 
now  required  to  defend  the  United  States  in  said 
court.     (22  U.  S.  Stats.  485,  sec.  5.) 

§  698.     Parties  in  interest  may  testify,  etc. — 

In  the  trial  of  such  cases  no  person  shall  be  ex- 
cluded as  a  witness  because  he  or  she  is  a  party 
to  or  interested  in  the  same.  (22  U.  S.  Stats. 
485,  sec.  6.) 

Fkd.  Proc— 120. 


§i  699-701  COURT  or  claims— jurisdiction.  1430 

§  699.  Reports  of  court  may  be  continued,  etc., 
for  action. — iieports  of  the  court  of  claims  to  con- 
gress under  this  act,  if  not  finally  acted  upon  dur- 
ing the  session  at  which  they  are  reported,  shall 
be  continued  from  session  to  session  and  from  con- 
gress to  congress  until  the  same  shall  be  finally 
acted  upon.  (Act  approved  March  3,  1883.  23 
U.  S.  Stats.  485,  sec.  7.) 

§  700.     Spoliations  committed  by  the  French. — 

Claimants  may  apply  by  petition  to  the  court  of 
claims  for  indemnity  for  detentions,  seizures,  con- 
demnations, and  confiscations  prior  to  the  ratifi- 
cation of  the  convention  between  the  United 
States  and  the  French  republic  concluded  on  Sep- 
tember 30,  1800,  ratified  July  31,  1801,  within  two 
years  from  the  passage  of  this  act;  provided,  that 
this  act  shall  not  extend  to  such  claims  as  were 
embraced  in  that  convention,  nor  to  such  claims 
growing  out  of  the  acts  of  France  as  were  allowed 
and  paid,  in  whole  or  in  part,  under  the  provisions 
of  the  treaty  between  the  United  States  and  Spain 
of  Feljruairy  28,  1819;  nor  to  such  claims  as  were 
allowed,  in  whole  or  in  part,  under  the  treaty  be- 
tween Ihe  United  States  and  France  of  July  4, 
1831.     (See  23  U.  S.  Stats.  283,  sec.  1.) 

§  701.     Court    to    make    needful    rules. — Tbe 

court  is  hereby  authorized  to  make  all  needful 
rules  and  regulations,  not  contravening  the  laws 
of  the  land  or  the  provisions  of  this  act,  for  exocnt- 
ing  the  provisions  hereof.  (23  U.  S.  Stats.  283, 
sec.  22.) 


1431  COUKT  OF  CLAIMS— JURISDICTION.  §§  702    704 

§  702.  Court  to  determine  validity,  amount, 
ownership  of  claims. — The  court  shall  examine 
ana  determine  the  validity  and  amount  of  all  the 
claims  included  within  the  description  above  men- 
tioned, together  with  their  present  ownership,  and 
if  by  assignee,  the  date  of  the  assignment,  with 
the  consideration  paid  therefor;  provided,  that  in 
the  course  of  their  proceedings  they  shall  receive 
all  suitable  testimony  on  oath  or  affirmation,  and 
all  other  proper  evidence,  historic  and  documen- 
tary, concerning  the  same;  and  they  shall  decide 
upon  the  validity  of  said  claims  according  to  the 
rules  of  law,  municipal  and  international,  and  the 
treaties  of  the  United  States  applicable  to  the 
same,  and  shall  report  all  such  conclusions  of  fact 
and  law  as  in  their  judgment  may  affect  the  liabil- 
ity of  the  United  States  therefor.  (23  U.  S.  Stats. 
283,  sec.  3.) 

§•  703.  Attorney  general,  notice  to  and  defense 
by. — The  court  shall  cause  notice  of  all, petitions 
presented  under  this  act  to  be  served  on  the  attor- 
ney general  of  the  United  States,  who  shall  be  au- 
thorized, by  himself  or  his  assistant,  to  examine 
witnesses,  to  cause  testimony  to  be  taken,  to  have 
access  to  all  testimony  taken  under  this  act,  and 
to  be  heard  by  the  court.  He  shall  resist  all 
claims  presented  under  this  act  by  all  proper  legal 
defenses.     (23  U.  S.  Stats.  283,  sec.  4.) 

§  704.  Evidence  and  documents — How  pro- 
cured and  filed. — It  shall  be  the  duty  of  the  secre- 


§§  705-706  COURT  OF  claims— jurisdiction.  1432 

tary  of  state  to  jjrocure^as  soon  as  possible  after  the 
passage  of  this  act^  through  the  American  minister 
at  Paris,  or  otherwise,  all  such  evidence  and  docu- 
ments relating  to  the  claims  above  mentioned  as 
can  be  obtained  from  abroad;  which,  together  with 
the  like  evidence  and  documents  on  file  in  the  de- 
partment of  state,  or  which  may  be  filed  in  the  de- 
partment, may  be  used  before  the  court  by  the 
claimants  interested  therein,  or  by  the  United 
States,  but  the  same  shall  not  be  removed  from 
the  files  of  the  court;  and  after  the  hearings  are 
closed,  the  record  of  the  proceedings  of  the  court 
and  the  documents  produced  before  them  shall  be 
deposited  in  the  department  of  state.  (23  U.  S. 
Stats.  283,  sec.  5.) 

§  705.     Court  to  report  to  Congress. — On    the 

first  MdiK'ay  of  December  in  each  year  the  court 
shall  report  to  Congress,  for  final  action,  the  facts 
found  by  it,  and  its  conclusions  in  all  cases  which 
it  has  disposed  of  and  not  previously  reported. 
Such  finding  and  report  of  the  court  shall  be  taken 
to  be  merely  advisory  as  to  the  law  and  facts  found, 
apd  shall  not  conclude  either  the  claimant  or  Con- 
gress; and  all  claims  not  finally  presented  to  said 
court  within  the  period  of  two  years  limited  l)y 
this  act  shall  be  forever  barred;  and  nothing  in  this 
act  shall  be  construed  as  committing  the  United 
States  to  the  payment  of  any  such  claims.  (Ap- 
proved January  20,  1885.  23  U.  S.  Stats.  283, 
sec.  6.) 

§  706.     Indian  depredations. — In    addition    to 


1433  COURT  OF  CLAIMS— JURISDICTION.  §  706 

the  jurisdiction  which  now  is,  or  may  hereafter  be, 
conferred  upon  the  court  of  claims,  said  court  sliall 
have  and  possess  jurisdiction  and  authority  to  in- 
quire into  and  finally  adjudicate,  in  the  manner 
provided  in  this  act,  all  claims  of  the  following- 
classes,  namely:  all  claims  for  property  of  citizens 
of  the  United  States  taken  or  destroyed  by  Indians 
belonging  to  any  band,  tribe,  or  nation  in  amity 
with  the  United  States,  without  just  cause  or  pro- 
vocation on  the  part  of  the  owner  or  agent  in 
charge,  and  not  returned  or  paid  for.  (26  U.  S. 
Stats.  851,  sec.  1,  cl.  1.) 

Note. — The  words  "claims  for  pi'operty  of  citizens" 
means  citizens  at  the  time  the  property  was  taken. 
(Valk's  Case,  28  Ct.  of  Gl.  241.)  This  section  makes 
citizenship  jurisdictional.  (Johnson's  Case,  29  Ct.  of 
Cl.  1.)  Ttie  court  of  claims  has  no  jurisdiction  of  a 
claim,  under  this  section,  for  consequential  damages. 
(Brice's  Case.  32  Ct.  of  Cl.  23.)  A  corporation  of  a 
State  is  a  '"citizen  of  the  United  States"  within  the 
meaning  of  the  above  section.  (United  States  v. 
Northwestern  Express  Stage  &  T.  Co..  164  U.  S.  68(5.) 
In  claims  for  Indian  depredations,  the  jurisdiction  of 
the  court  of  claims  now  supersedes  that  of  the  sec- 
retary of  the  interior.  (.Jaeger's  Case,  27  Ct.  of  Cl. 
278.)  The  Indian  depredation  act  is  jurisdictional. 
The  jurisdiction  is  commensurate  with  ana  includes 
all  legal  liabilities  of  Indian  defendants.  (Love's 
Case.  29  Ct.  of  Cl.  332.)  If  the  property  wa.s  not, 
when  taken  or  desti'oyed,  the  pi'operty  of  a  citizen, 
a  claim  therefor  is  clearly  outside  the  statute,  al- 
though the  status  of  the  claimant  has  since  changed 
and  he  was  a  citizen  at  the  passage  of  the  act.  (John- 
son V.  United  States,  160  U.  S.  546.) 


§§  707-709  COURT  OF  claims— jurisdiction.  1434 

§  707.  Examined  claims. — Such  jurisdiction 
sliall  also  extend  to  all  cases  which  have  been  ex- 
amined and  allowed  by  the  interior  department, 
and  also  to  such  cases  as  were  authorized  to  be 
examined  under  the  act  of  Congress  making  appro- 
priations for  the  current  and  contingent  expenses 
of  the  Indian  department,  and  for  fulfilling  treaty 
stipulations  with  various  Indian  tribes  for  the 
year  ending  June  30,  1886,  and  for  other  purposes 
(approved  March  3,  1885;  23  U.  S.  Stats.  376), 
and  under  subsequent  acts,  Subject,  however,  to 
the  limitations  hereinafter  provided.  (26  U.  S. 
Stats.  851,  sec.  1,  cl.  2.) 

§•708.  Offsets  and  counterclaims. — All  just 
offsets  and  counterclaims  to  any  claim  of  either  of 
the  preceding  classes  which  may  be  before  such 
court  for  determination.  (26  U.  S.  Stats.  851, 
sec.  1,  cl.  3.) 

§  709.  Waiver  of  limitations. — All  questions 
of  limitations  as  to  time  and  manner  of  presenting 
claims  are  hereby  waived,  and  no  claim  shall  be 
excluded  from  the  jurisdiction  of  the  court  be- 
cause not  heretofore  presented  to  the  secretary  of 
the  interior,  or  other  officer  or  department  of  the 
government;  provided,  that  no  claim  accruing 
prior  to  July  1,  1865,  shall  be  considered  by  the 
court  unless  the  claim  shall  be  allowed,  or  has  been 
or  is  pending,  prior  to  the  passage  of  this  act,  be- 
fore the  secretary  of  the  interior  or  the  Congress  of 
the  United  States,  or  before  any  superintendent, 


1435  COURT  OF  CLAIMS— JURISDICTION.  §  710 

agent,  subagent,  or  commissioner,  authorized  un- 
der any  act  of  Congress  to  inquire  into  such  claims; 
but  no  case  shall  be  considered  pending  unless 
evidence  has  been  presented  therein;  and  provided 
further,  that  all  claims  existing  at  the  time  of  the 
taking  effect  of  this  act  shall  be  presented  to  the 
court  by  petition,  as  hereinafter  provided,  within 
three  years  after  the  passage  hereof,  or  shall  be 
thereafter  for  ever  barred;  and  provided,  further, 
that  no  suit  or  proceeding  shall  be  allowed  under 
this  act  for  any  depredation  which  shall  be  com- 
mitted after  the  passage  thereof.  (26  U.  S.  Stats. 
851,  sec.  2.) 

§  710.  Petition,  etc. — All  claims  shall  be  pre- 
sented to  the  court  by  petition  setting  forth  in  or- 
dinary and  concise  language,  without  unnecessary 
repetition,  the  facts  upon  which  such  claims  are 
based,  the  persons,  classes  of  persons,  tribe  or 
tribes,  or  band  of  Indians  by  whom  the  alleged 
illegal  acts  were  committed,  as  near  as  may  be, 
the  property  lost  or  destroyed,  and  the  value  there- 
of, and  any  other  facts  connected  with  the  trans- 
actions and  material  to  the  proper  adjudication 
of  the  case  involved.  The  petition  shall  be  verified 
by  the  affidavit  of  the  claimant,  his  agent,  admin- 
istrator, or  attorney,  and  shall  be  filed  with  the 
clerk  of  said  court.  It  shall  set  forth  the  full 
name  and  residence  of  the  claimant,  the  damages 
sought  to  be  recovered,  praying  the  court  for  a 
judgment  upon  the  facts  and  the  law.  (26  U.  S. 
Stats.  851,  sec.  3.) 


§711  COURT  OF  CLAIMS— JURISDICTION.  *     J436 

Parties  in  Indian  cases.— In  Indian  depredation 
cases  the  court  may  bring  in  new  Indian  defendants 
after  the  statutory  period  for  bringing  such  suits 
has  expired.  The  court  may  bring  in  a  tribe  as  de- 
fendant at  any  lime  before  judgment.  (Duran's  Case, 
31  Ct.  of  CI.  353.) 

§  711.  Service  on  and  defense  by  attorney- 
general. — The  service  of  the  petition  shall  be 
made  upon  the  attorney-general  of  the  United 
States,  in  such  manner  as  may  be  provided  by  the 
rules  or  orders  of  said  court.  It  shall  be  the  duty 
of  the  attorney-general  of  the  United  States  to 
appear  and  defend  the  interests  of  the  Government 
and  of  the  Indians  in  the  suit,  and  within  sixty 
days  after  the  service  of  the  petition  upon  him, 
unless  the  time  shall  be  extended  by  order  of  the 
court  made  in  the  case,  to  file  a  plea,  answer,  or 
demurrer,  on  the  part  of  the  Government  and  the 
Indians,  and  to  file  a  notice  of  any  counterclaim, 
set-off,  claim  of  damages,  demand,  or  defense 
whatsoever  of  the  Government  or  of  the  Indians 
in  the  premises;  provided,  that  should  the  attor- 
ney-general neglect  or  refuse  to  file  the  plea,  an- 
swer, demurrer,  or  defense  as  required,  the  claim- 
ant may  proceed  with  the  case  under  such  iniles 
as  the  court  may  adopt  in  the  premises;  but  the 
claimant  shall  not  have  judgment  for  his  claim, 
or  for  any  part  thereof,  unless  he  sliall  establish  the 
same  by  proofs  satisfactory  to  the  court;  provided^ 
that  any  Indian  or  Indians  interested  in  the  pro- 
ceedings may  appear  and  defend,  by  an  attorney 
employed  by  such  Indian  or  Indians  with  the  ap- 


1437  COUBT  OF  CLAIMS— JURISDICTION.  §  713 

proval  of  the  commissioner  of  Indian  affairs,  if 
he  or  they  shall  choose  so  to  do.  (26  U.  S.  Stats. 
851,  sec.  4,  cl.  1.) 

Service  on  Indians. — The  service  of  a  petition  in 
Indian  depredation  cases  upon  ttie  attorney  geuex-al  is 
all  that  is  required;  the  Indians  are  not  entitled  to 
notice.     (Jaegei-'s  Case,  27  Ct.  of  Cl.  278.) 

Attorney  for  Indians.— Fee  of,  how  allowed.  (Unit- 
ed States  V.  Blackfeather,  155  U.  S.  180.) 

Defendant's  pleading.— In  Indian  cases  the  court  of 
claims  may  allow  the  defendants  to  file  a  plea  after 
the  time  prescribed  by  the  statute,  even  though  the 
legal  right  of  the  defendants  to  file  it  expires  at  the 
time  fixed.  (Labadie's  Case,  31  Ct.  of  Cl.  436.)  The 
general  traverse  puts  in  issue  evei'y  allegation  in  the 
petition  in  an  Indian  depredation  case.  (.King's  Case, 
51  Ct.  of  Cl.  804;  Gamel's  Case,  31  Ct.  of  Cl.  321.) 
Claimants  cannot  have  judgment  by  default.  (King's 
Case,  31  Ct.  of  Cl.  304.)  If  either  party  asks  a  sev- 
erance of  issues  the  jurisdictional  issues  must  be  tried 
first.     (Gamel's  Case,  31  Ct.  of  Cl.  321. 

§  712.  Evidence — Priority  of  claims  reopen- 
ing cases. — In  considering  the  merits  of  claims 
presented  to  the  court,  any  testimony,  affidavits, 
reports  of  special  agents  or  other  officers,  and  such 
other  papers  as  are  now  on  file  in  the  departments 
or  in  the  courts,  relating  to  any  such  claims,  shall 
be  considered  by  the  court  as  competent  evidence, 
and  such  weight  given  thereto  as  in  its  judgment 
is  right  and  proper;  provided,  that  all  unpaid 
claims  which  have  heretofore  been  examined,  ap- 
proved, and  allowed  by  the  secretary  of  the  in- 


§  713  COURT  OF  CLAIMS— JURISDICTION.  1438 

terior,  or  under  his  direction,  in  pursuance  of  the 
act  of  Congress  making  appropriations  for  the 
current  and  contingent  expenses  of  the  Indian  de- 
partment, and  for  fulfilling  treaty  stipulations 
with  various  Indian  tribes,  for  the  year  ending 
June  30,  1886,  and  for  other  purposes,  approved 
March  3,  1885,  and  subsequent  Indian  appropria- 
tion acts,  shall  have  priority  of  consideration  by 
such  court,  and  judgments  for  the  amounts  there- 
in found  due  shall  be  rendered,  unless  either  the 
claimant  or  the  United  States  shall  elect  to  reopen 
the  case  and  try  the  same  before  the  court,  in 
which  event  the  testimony  in  the  case  given  by 
the  witnesses,  and  the  documentary  evidence,  in- 
cluding reports  of  department  agents  therein,  may 
be  read  as  depositions  and  proofs;  provided,  that 
the  party  electing  to  reopen  the  case  shall  assume 
the  burden  of  proof.  (26  U.  S.  Stats.  851,  sec.  4 
cl.  2.) 

Beopening'  case.— Where  defendants  have  not  signi- 
fied their  election  whether  they  will  reopen  an  Indian 
depredation  case,  a  motion  for  judgment  is  premature. 
(Mitchell's  Case,  27  Ct.  of  Cl.  31G.)  When  an  Indian 
depredation  case  is  reopened,  the  whole  case  is  re- 
opened for  trial  de  novo,  subject  only  to  the  provision 
concerning  the  burden  of  proof.  (Leighton's  Case,  29 
Ct.  of  Cl.  288.) 

§  713.  Rules  for  taking  testimony,  etc. — The 
said  court  sliall  make  rules  and  regulations  for 
taking  testimony  in  the  causes  herein  provided 
for,  by  deposition  or  otherwise,  and  such  testi- 
mony shall  be  taken  in  the  county  where  the  wit- 


1439  COURT  OF  CLAIMS— JUBISDICTION.  §  714 

ness  resides,  when  the  same  can  be  conveniently 
done,  and  no  person,  shall  be  excluded  as  a  wit- 
ness because  he  is  party  to  or  interested  in  said 
suit,  and  any  claimant  or  party  in  interest  may 
be  examined  as  a  witness  on  the  part  of  the  Gov- 
ernment; that  the  court  shall  determine  in  each 
case  the  value  of  the  property  taken  or  destroyed 
at  the  time  and  place  of  the  loss  or  destruction, 
and,  if  possible,  the  tribe  of  Indians  or  other  per- 
sons by  whom  the  wrong  was  committed,  and  shall 
render  judgment  in  favor  of  the  claimant  or  claim- 
ants against  the  United  States,  and  against  the 
tribe  of  Indians  committing  the  wrong,  when  such 
can  be  identified.     (26  U.  S.  Stats.  851,  sec.  5.) 

§  714.  Judgment,  how  paid. — The  amount  of 
any  judgment  so  rendered  against  any  tribe  of 
Indians  shall  be  charged  against  the  tribe  by 
which,  or  by  members  of  which,  the  court  shall 
find  that  the  depredation  was  committed,  and  shall 
be  deducted  and  paid  in  the  following  manner: 
First,  from  annuities  due  said  tribe  from  the  Uni- 
ted States;  second,  if  no  annuities  are  due  or 
available,  then  from  any  other  funds  due  said 
tribe  from  the  United  States,  arising  from  the 
sale  of  their  lands  or  otherwise;  third,  if  no  such 
funds  are  due  or  available,  then  from  any  appro- 
priation for  the  benefit  o±  said  tribe,  other  than 
appropriations  for  their  current  and  necessary 
support,  subsistence,  and  education;  and  fourth, 
if  no  such  annuity,  fund,  or  appropriation  is  due 
or  available,  then  the  amount  of    the  judgment 


§§  715-717   COURT  OF  CLAIMS— JURISDICTION.  1440 

shall  be  paid  from  Llie  treasury  of  the  United 
States;  provide'd,  that  any  amount,  so  paid  from 
the  treasury  of  the  United  States  shall  remain  a 
charge  against  such  tribe,  and  shall  be  deducted 
from  any  annuity,  fund,  or  appropriation  herein- 
before designated  which  may  hereafter  become 
due  from  the  United  States  to  such  tribe.  (26 
U.  S.  Stats.  851,  sec.  6.) 

§  715.  Judgments  final — Appeal. — All  judg- 
ments of  said  court  shall  be  a  tinal  determination 
of  the  causes  decided,  and  of  the  rights  and  obli- 
gations of  the  parties  thereto,  and  shall  not  there- 
after be  questioned  unless  a  new  trial  or  rehear- 
ing shall  be  granted  by  said  court,  or  the  judg- 
ment reversed  or  modified  upon  appeal  as  here- 
after provided.     (26  U.  S.  Stats.  851,  sec.  7.) 

§  716.  List  of  judgments  to  be  sent  to  Con- 
gress.— Immediately  after  the  beginning  of  each 
session  of  Congress,  tlie  attorney-general  of  the 
United  States  shall  transmit  to  the  Congress  of 
the  United  States  a  list  of  all  final  judgments 
rendered  in  pursuance  of  this  act,  in  favor  of 
claimants  and  against  the  United  States,  and  not 
paid  as  hereinbefore  provided,  which  shall  there- 
upon be  api)ropriated  for  in  the  proper  appropria- 
tion bill.    (26  U.  S.  Stats.  851,  sec.  8.) 

§  717.  Assignment  of  claims.— All  sales,  trans- 
fers, or  assignments  of  any  such  claims  hereto- 
fore or  hereafter  made,  except  such  as  have  oc- 
curred in  the  due  administration    of  decedents' 


1441  COUKT  OF  CLAIMS— JUBISDICTION.  §  718 

estates,  and  all  contracts  heretofore  made  for  fees 
and  allowances  to  claimants'  attorneys,  are  here- 
by declared  void,  and  all  warrants  issued  by  the 
secretary  of  the  treasury,  in  payment  of  such  judg- 
ments, shall  be  made  payable  and  delivered  only 
to  the  claimant  or  his  lawful  heirs,  executors,  or 
administrators,  or  transferee  under  administra- 
tive proceedings,  except  so  much  thereof  as  shall 
be  allowed  the  claimant's  attorneys  by  the  court 
for  prosecuting  said  claim,  which  may  be  paid  di- 
rect to  such  attorneys,  and  the  allowances  to  the 
claimant's  attorneys  shall  be  regulated  and  fixed 
by  the  court  at  the  time  of  rendering  judgment 
in  each  case  and  entered  of  record  as  part  of  the 
findings  thereof;  but  in  no  case  shall  the  allow- 
ance exceed  fifteen  per  cent  of  the  judgment  re- 
covered, except  in  case  of  claims  of  less  amount 
than  five  hundred  dollars,  or  where  unusual  ser- 
vices have  been  rendered  or  expenses  incurred  by 
the  claimant's  attorney,  in  which  case  not  to  ex- 
ceed twenty  per  cent  of  such  judgment  shall  be  al- 
lowed by  the  court.    (26  U.  S.  Stats.  851,  sec.  9.) 

Fees.— All  fees  are  to  be  regulated    by  the  court. 
(Tanner's  Case,  32  Ct.  of  CI.  192.) 

§  718.  Appeal. — The  claimant,  or  the  United 
States,  or  the  tribe  of  Indians,  or  other  party 
thereto  interested  in  any  proceedings  brought  un- 
der the  provisions  of  this  act,  shall  have  the  same 
rights  of  appeal  as  are  or  may  be  reserved  in  the 
statutes  of  the  United  States  in  other  cases,  and 
upon  the  conditions  and  limitations  therein  con- 
Fed.  Peoc— 121. 


§g  719-721  COUKT  OF  CLAIMS— JUKISDICTION.  1442 

tained.  The  mode  of  procedure  in  claiming  and 
perfecting  an  appeal  shall  conform,  in  all  respects, 
as  near  as  may  be,  to  the  statutes  and  rules  of 
court  governing  appeals  in  other  cases.  (36  U.  S. 
Stats.  851,  sec.  10.) 

§  719.  All  papers,  etc.,  to  be  furnished  the 
court. — All  papers,  reports,  evidence,  records  and 
proceedings  now  on  file  or  of  record  in  any  of  the 
departments  or  the  office  of  the  secretary  of  the 
Senate,  or  the  office  of  the  clerk  of  the  House  of 
Eeprescntatives,  or  certified  copies  of  the  same, 
relating  to  any  claims  authorized  to  be  prosecuted 
under  this  act,  shall  be  furnished  to  the  court  upon 
its  order,  or  at  the  request  of  the  attorney-general. 
(26  U.  S.  Stats.  851,  sec.  11.) 

§  720.  Assistant  attorney-general. — To  facili- 
tate the  speedy  disposition  of  the  cases  herein  pro- 
vided for,  in  said  court  of  claims,  there  shall  be 
appointed,  in  the  manner  prescribed  by  law  for 
the  appointment  of  assistant  attorney-generals, 
one  additional  assistant  attorney-general  of  the 
United  States,  who  shall  receive  a  salary  of 
twenty-five  hundred  dollars  per  annum.  (26  U.  S. 
Stats.  851,  sec.  12.) 

§  721.     Investigation  under  present  laws. — The 

investigation  and  examinations,  under  the  provi- 
sions of  the  acts  of  Congress  heretofore  in  force, 
of  Indians  depredation  claims,  shall  cease  upon 
the  taking  effect  of  this  act,  and  the  unexpended 
balance  of  the  appropriation  therefor    shall    be 


1443  COUKT  OF  CLAIMS— JURISDICTION.  §§  722-723 

covered  into  the  treasury,  except  so  rauch  thereof 
as  may  be  necessary  for  disposing  of  tlie  unfinish- 
ed business  pertaining  to  the  claims  now  under 
investigation  in  the  interior  department,  pending 
the  transfer  of  said  claims  and  business  to  the 
court  or  courts  herein  provided  for,  and  for  mak- 
ing such  transfers  and  a  record  of  the  same,  and 
for  the  proper  care  and  custody  of  the  papers  and 
records  relating  thereto.  (Approved,  March  3, 
1891;  26  U.  S.  Stats.  851,  sec.  13.) 

§  722.  Court  to  determine  claim  of  Pottawa- 
tomies. — Full  jurisdiction  is  conferred  on  the 
court  of  claims,  subject  to  an  appeal  to  the  su- 
preme court,  to  hear  and  determine  the  question 
whether  or  not  a  citizen  band  of  Pottawatomie  In- 
dians purchased  and  paid  the  United  States  for 
the  tract  of  country,  under  an  agreement  entered 
into  between  the  United  States  and  said  band  of 
Indians,  pursuant  to  the  Act  of  March  3,  1891. 
(See  26  U.  S.  Stats.  1021,  sec.  12.) 

§  723.  Private  claim  referred. — A  claim  of 
certain  members  of  the  Pottawatomie  nation  of 
Indians  referred  to  the  court  of  claims  for  adjudi- 
cation. (Appropriation  Act  of  March  3,  1885;  23 
U.  S.  Stats.  372.) 

(See  Pam-to-Pee  v.  United  States,  148  U.  S.  691.) 


COUBT  or  PBIVATE  LAND  CLAIMS.  1444 


CHAPTER  XXV. 

COURT  OF  PRIVATE  LAND  CLArWS. 

S  724.     Court  of  private  land  claims  established. 

§  725.    Powers,  etc. 

§  726.    Appointment  of  United  States  attorney^ 

§  727.  Notice  of  organization  of  court  in  English  and 
Spanish. 

§  728.     Production  of  records,  etc.,  in  court. 

§  729.     Competence,  etc.,  of  evidence  as  to  claims. 

§  730.  Claimants  under  certain  unconfirmed  grants 
may  petition  court  in  territory,  etc. 

§  731.     Form,  etc.,  of  petition. 

§  732.     Jurisdiction,  etc. — Procedure. 

§  733.  Proceedings  after  p(?tition — Powers,  etc.,  of 
adjudication. 

§  734.  Certain  other  claimants  claiming  under  com- 
pleted title  may  apply  for  confirmation — Pro- 
cedure. 

§  735.     Confirmation  of  perfect  title  limited. 

§  736.  Proceedings  by  the  United  States  against  cer- 
tain claimants,  etc. 

§  737.  Appeal— Retrial  by  supreme  court  on  appeal- 
Final  decree. 

§  738.  Attorney-general  to  be  notified  by  attorney  of 
United  States  of  judgment  of  confirmation. 

§  739.  Certification  of  final  decree  of  confirmation  to 
commissioner  of  general  land-office  by  clerk 
of  decreeing  court. 

§  740.  Approval  and  forwarding  to  general  land- 
office. 

S  741.  Commissioner  of  general  land-office  to  ti'ans- 
mit  survey,  etc.,  to  court  of  final  decisions. 


1445  COUKT  OF  PRIVATE  LAND  CLAIMS.  §  724 

§  742.     Scope  of  act  as  to  claims— Legal  claimants 
and  representatives. 

§  743.    Neglect  to  file  petition  in  two  years  a  bar- 
Provisos. 

§  744.     Limitati(tos  of  right  to  proceed. 

§  745,    No  claim  allowed  unless  tiitle  lawfully  and 
regularly  derived,  etc. 

§  746.     No  claim  allowed  interfering  with  Indian  ti- 
tle, etc. 

§  747.    No  confirmation  to  confer  title,  etc.,  to  mines 
of  minerals. 

§  748.     No  claim  allowed  for  right  hitherto  decided  by 
Congress,  etc. 

§  749.    Private  rights  of  persons  between  each  other 
not  concluded. 

§  750,     Operation  of  decree  as  against  United  States. 

§  751.     No  confirmation,  etc,  for    more  than  eleiven 
square  leagues  to  original  grantee,  etc, 

§  752,     Conditional  grants,  etc.,  barred  if  conditions 
imperformed, 

§  753,    Lands  decreed  to  claimant,  but  granted,  etc., 
by  United  States  to  another. 

§  754.    Ascertainment   and   report   on    Spanish   and 
Mexican  claims. 

§  755,     Continuous    adverse    possession    for    twenty 
years  recognized,  etc. 

§  756,    lieview  by  commissioner  of  general  land-office 
—Patents. 

§  757.    Where  township  surveys  already  made. 

§  758,     Filing  of  claims  under  adverse  possessiion— 

Time  limit. 
§  759.     Cessation,  etc,  of  functions,  etc.,  of  court- 
Date,  etc. 

§  724.  Court  of  private  land  claims  estab- 
lished.— There  shall  be,  and  hereby  is,  established 
a  court  to  be  called  the  court    of    private    land 


§  725  COUET  OF  PRIVATE  LAND  CLAIMS.  1446 

claims,  to  consist  of  a  chief  justice  and  four  as- 
sociate justices,  who  shall  be,  when  appointed,  citi- 
zens and  residents  of  some  of  the  States  of  the 
United  States,  to  be  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the  Senate, 
to  hold,  their  offices  for  the  term  expiring  on  the 
thirty-first  day  of  December,  Anno  Domini  eigh- 
teen hundred  and  ninety-five;  any  three  of  whom 
shall  constitute  a  quorum.  Said  court  shall  have 
and  exercise  jurisdiction  in  the  hearing  and  de- 
cision of  private  land  claims  according  to  the  pro- 
visions of  this  Act.  The  chief  justice  and  the 
associate  justices  shall  each  receive  a  compensa- 
tion of  five  thousand  dollars  per  year,  payable 
monthly,  and  necessary  traveling  and  personal  ex- 
penses while  engaged  in  the  performance  of  their 
duties.  The  said  court  shall  appoint  a  clerk,  at 
a  salary  of  two  thousand  dollars  a  year,  who  shall 
attend  all  the  sessions  of  the  court,  and  a  deputy 
clerk,  where  regular  terms  of  the  court  are  held, 
at  a  salary  of  eight  hundred  dollars  a  year.  The 
court  shall  appoint  a  stenographer,  at  a  salary  of 
fifteen  hundred  dollars  a  year,  who  shall  attend 
all  the  sessions  of  the  court  and  perform  the  duties 
required  of  him  by  the  court.  (26  TJ.  S.  Stats. 
854,  sec.  1,  cl.  1.) 

§  725.  Powers,  etc. — The  said  court  shall  have 
power  to  adopt  all  necessary  rules  and  regulations 
for  the  transaction  of  its  business  and  to  carry 
out  the  provisions  of  this  act;  to  issue  any  pro- 
cess necessary  to  the  transaction  of  the  business 


]447  COURT  OF  PRIVATE  LAND  CLAIMS.  §  736 

of  said  court,  and  to  issue  commissions  to  take 
depositions  as  provided  in  chapter  seventeen  of 
title  thirteen  of  the.  Eevised  Statutes  of  the  United 
States.  Each  of  said  justices  shall  have  power  to 
administer  oaths  and  affirmations.  It  shall  be 
the  duty  of  the  United  States  marshal  for  any 
district  or  territory  in  which  the  court  is  held  to 
serve  any  process  of  the  said  court  placed  in  his 
hands  for  that  purpose,  and  to  attend  the  court 
in  person  or  by  deputy  when  so  directed  by  the 
court.  The  court  shall  hold  such  sessions  in  the 
States  and  Territories  mentioned  in  this  Act  as 
shall  be  needful  for  the  purposes  thereof,  and  shall 
give  notice  of  the  times  and  places  of  the  hold- 
ing of  such  sessions,  by  publication  in  both  the 
English  and  Spanish  languages,  in  one  newspaper 
published  at  the  capital  of  such  State  or  Terri- 
tory, once  a  week  for  two  successive  weeks,  the 
last  of  which  publications  shall  be  not  less  than 
thirty  days  next  preceding  the  times  of  the  hold- 
ing of"  such  sessions,  but  such  sessions  may  be  ad- 
journed from  time  to  time  without  such  publica- 
tion.    (26  U.  S.  Stats.  854,  sec.  1,  cl.  2.) 

§  726.  United  States  attorney,  appointment, 
— There  shall  also  be  appointed  by  the  President, 
by  and  with  the  advice  and  consent  of  the*  Senate, 
a  competent  attorney,  learned  in  the  law,  who 
shall  when  appointed  be  a  resident  and  citizen  of 
some  State  of  tbe  United  States,  to  represent  the 
United  States  in  said  court.  Such  attorney  shall 
receive  a    compensation  of    three    thousand  five 


§§  727-728  COURT  of  private  land  claims.  144S 

hundred  dollars  per  year,  payable  montlily,  and 
his  necessary  traveling  and  personal  expenses 
while  engaged  in  the  discharge  of  his  duties.  And 
there  shall  be  appointed  by  the  said  court  a  per- 
son who  shall  be  when  appointed  a  citizen  and 
resident  of  some  State  of  the  United  States,  skill- 
ed in  the  Spanish  and  English  languages,  to  act 
as  interpreter  and  translator  in  said  court,  to  at- 
tend all  the  sessions  thereof,  and  to  perform  such 
other  service  as  may  be  required  of  him  by  the 
court.  Such  person  shall  be  entitled  to  a  com- 
pensation of  one  thousand  five  hundred  dollars 
per  year,  payable  monthly,  and  his  necessary  trav- 
eling and  personal  expenses  while  engaged  in  the 
discharge  of  his  duties.  (26  U.  S.  Stats.  855,  sec. 
2.) 

§  727.  Notice  of  organization  of  court. — Im- 
mediately upon  the  organization  of  said  court, 
the  clerk  shall  cause  notices  thereof,  and  of  the 
time  and  place  of  the  first  session  thereof,  to  be 
published  for  a  period  of  ninety  days  in  one  news- 
paper at  the  city  of  Washington  and  in  one  pub- 
lished at  the  capital  of  the  State  of  Colorado  and 
of  the  Territories  of  Arizona  and  JTew  Mexico. 
Such  notices  shall  be  published  in  both  the  Span- 
ish and  English  languages,  and  shall  contain  the 
substance  of  this  Act.    (26  U.  S.  Stats.  855,  sec.  3.) 

§  728.  Production  of  records,  etc. — It  shall  be 
the  duty  of  the  commissioner  of  the  general  land- 
office  of  the  United  States,  the  surveyors-general 


1449  COURT  OF  PRIVATE  LAND  CLAIMS.  §§  729-730 

of  such  Territories  and  States,  or  the  keeper  of 
any  public  records  who  may  have  possession  of  any 
records  and  papers  relating  to  any  land  grants 
or  claims  for  land  within  said  States  and  Terri- 
tories in  relation  to  which  any  petition  shall  be 
brought  under  this  Act,  on  the  application  of 
any  person  interested,  or  by  the  attorney  of  the 
United  States,  to  safely  transmit  such  records  and 
papers  to  said  court  or  to  attend  in  person  or  by 
deputy  any  session  thereof,  when  required  by  said 
court,  and  produce  such  records  and  papers.  (26 
TJ.  S.  Stats.  856,  sec.  4.)  * 

§  729.  Competence,  etc.,  of  evidence  as  to 
claims. — The  testimony  which  has  been  hereto- 
fore lawfully  and  regularly  received  by  the  sur- 
veyor-general of  the  proper  Territory  or  State, 
or  by  the  commissioner  of  the  general  landoffice, 
upon  any  claims  presented  to  them,  respectively, 
shall  be  admitted  in  evidence  in  all  trials  under 
this  Act  when  the  person  testifying  is  dead,  so 
far  as  the  subject-matter  thereof  is  competent 
evidence,  and  the  court  shall  give  it  such  weight 
as,  in  its  judgment,  under  all  the  circumstances,  it 
ought  to  have.    (U.  S.  Stats.  856,  sec.  5.) 

§  730.     Claimants  under  unconfirmed  grants. — 

It  shall  and  may  be  lawful  for  any  person  or  per- 
sons, or  corporation,  or  their  legal  representatives, 
claiming  lands  within  the  limits  of  the  Territory 
derived  by  the  United  States  from  the  republic 
of  Mexico,  and  now  embraced  within  the  Terri- 


§  731  COUKT  OF  PRIVATE  LAND   CLAIMS.  1450 

tories  of  New  Mexico,  Arizona,  or  Utah,  or  with- 
in the  States  of  Nevada,  Colorado  or  Wyoming, 
by  virtue  of  any  such  Spanish  or  Mexican  grant, 
concession,  warrant,  or  survey  as  the  United 
States  are  bound  to  recognize  and  confirm  by  vir- 
tue of  the  treaties  of  cession  of  said  country  by 
Mexico  to  the  United  States  which  at  the  date 
of  the  passage  of  this  Act  have  not  been  confirm- 
ed by  Act  of  Congress,  or  otherwise  finally  de- 
cided upon  by  lawful  authority,  and  which  are 
not  already  complete  and  perfect,  in  every  such 
case  to  present  a  petition,  in  writing,  to  the  said 
court  in  the  State  or  Territory  where  said  land 
is  situated  and  where  the  said  court  holds  its  ses- 
sions, but  cases  arising  in  the  States  and  Terri- 
tories in  which  the  court  does  not  hold  regular 
sessions  may  be  instituted  at  such  place  as  may 
be  designated  by  the  rules  of  the  court.  (26  U.  S. 
Stats.  856,  sec.  6,  cl.  1.) 

§  731.  Form  of  petition. — The  petition  shall 
set  forth  fully  the  nature  of  their  claims  to  the 
lands,  and  particularly  state  the  date  and  form  of 
the  grant,  concession,  warrant,  or  order  of  sur- 
vey under  which  they  claim,  by  whom  made,  the 
name  or  names  of  any  person  or  persons  in  pos- 
session of  or  claiming  the  same,  or  any  part  there- 
of, otherwise  than  by  the  lease  or  permission  of 
the  petitioner;  and  also  the  quantity  of  land  claim- 
ed and  the  boundaries  thereof,  where  situate,  with 
a  map  showing  the  same,  as  near  as  may  be,  and 
whether  the  said  claim  has  heretofore  been  con- 


1451  COURT  OF  PRIVATE  LAND  CLAIMS.  §  732 

firmed,  considered,  or  acted  upon  by  Congress  or 
the  authorities  of  the  United  States,  or  been 
heretofore  submitted  to  any  authorities  consti- 
tuted by  law  for  the  adjustment  of  land  titles 
within  the  limits  of  the  said  Territory  so  acquired, 
and  by  them  reported  on  unfavorably  or  recom- 
mended for  confirmation,  or  authorized  to  be  sur- 
veyed or  not;  and  pray  in  such  petition  that  the 
validity  of  such  title  or  claim  may  be  inquired 
into  and  decided.  (36  U.  S.  Stats.  856,  sec.  6,  cl. 
2.) 

§  732.     Jurisdiction,     etc. —  Procedure.  —  And 

the  said  court  is  hereby  authorized  and  required 
to  take  and  exercise  jurisdiction  of  all  cases  or 
claims  presented  by  petition  in  conformity  with 
the  provisions  of  this  Act,  and  to  hear  and  deter- 
mine the  same,  as  in  this  act  provided,  on  the  pe- 
tition and  proofs  in  case  no  answer  or  answers  be 
filed  after  due  notice,  or  on  the  petition,  and  the 
answer  or  answers  of  any  person  or  persons  inter- 
ested in  preventing  any  claim  from  being  estab- 
lished, and  tbe  answer  of  the  attorney  for  the 
United  States  where  he  may  have  filed  an  answer, 
and  such  testimony  and  proofs  as  may  be  taken; 
and  a  copy  of  such  petition,  with  a  citation  to  any 
adverse  possessor  or  claimant,  shall,  immediately 
after  the  filing  of  the  same,  be  served  on  such  pos- 
sessor or  claimant  in  the  ordinary  legal  manner 
of  serving  such  process  in  the  proper  State  or  Ter- 
ritory, and  in  like  manner  on  the  attorney  for 
the  United  States;  and  it  shall  be  the  duty  of  the 


§  733  COURT  or  private  land  claims.  1452 

attorney  for  the  United  States,  as  also  any  ad- 
verse possessor  or  claimant,  after  service  of  peti- 
tion and  citation  as  hereinbefore  provided,  with- 
in thirty  days,  unless  further  time  shall,  for  good 
cause  shown,  be  granted  by  the  court,  or  a  judge 
thereof,  to  enter  an  appearance,  and  plead,  an- 
swer, or  demur  to  said  petition;  and  in  de- 
fault of  such  plea,  answer,  or  demurrer  being 
made  within  said  thirty  days,  or  within  the  fur- 
ther time  which  may  have  been  granted  as  afore- 
said, the  court  shall  proceed  to  hear  the  cause  on 
the  petition  and  proofs,  and  render  a  final  decree 
according  to  the  provisions  of  this  Act,  and  in 
no  case  shall  a  decree  be  entered  otherwise  than 
upon  full  legal  proof  and  hearing;  and  in  every 
case  the  court  shall  require  the  petition  to  be  sus- 
tained by  satisfactory  proofs,  whether  an  answer 
or  plea  shall  have  been  filed  or  not.  (26  U.  S. 
Stats.  856,  sec.  6,  cl.  3.) 

Jurisdiction  of  court  of  private  land  claims.— A 
case  presented  for  adjudication  to  the  court  of  pri- 
vate land  claims  must  be  clearly  within  the  act  of 
Congress  creating  such  tribunal  or  relief  cannot  be 
given.  (United  States  v.  Sandoval,  1G7  U.  S.  278.) 
The  court  cannot  adjudge  in  favor  of  the  validity  of 
a  gram  unless  satisfied  by  the  evidence  of  the  au- 
thority of  the  granting  officer  or  body  to  convey  the 
public  domain,  or  that  the  exercise  of  that  power  if 
unwarranted,  was  subsequently  lawfully  ratified. 
(Hayes  v.  United  States,  170  U.  S.  637.) 

§  733.  Proceedings  after  petition  —  Powers, 
etc. — All  proceedings  subsequent  to   the  filing  of 


1453  COUKT  OF  PKIVATE  LAND  CLAIMS.  §  733 

said  petition  shall  be  conducted  as  near  as  may 
be  according  to  the  practice  of  the  courts  of 
equity  of  the  United  State,  except  that  the  an- 
swer of  the  attorney  of  the  United  States  shall 
not  be  required  to  be  verified  by  his  oath,  and  ex- 
cept that,  as  far  as  practicable,  testimony  shall 
be  taken  in  court  or  before  one  of  the  justices 
thereof.  The  said  court  shall  have  full  power 
and  authority  to  hear  and  determine  all  ques- 
tions arising  in  cases  before  it  relative  to  the  title 
to  the  land,  the  subject  of  such  case,  the  extent, 
location,  and  boundaries  thereof,  and  other  mat- 
ters connected  therewith  fit  and  proper  to  be  heard 
and  determined,  and  by  a  final  decree  to  settle  and 
determine  the  question  of  the  validity  of  the  title 
and  the  boundaries  of  the  grant  or  claim  presented 
for  adjudication,  according  to  the  law  of  nations, 
the  stipulations  of  the  treaty  concluded  between 
the  United  States  and  the  republic  of  Mexico  at 
the  city  of  Guadalupe-Hidalgo,  on  the  second  day 
of  February,  in  the  year  of  our  Lord  eighteen  hun- 
dred and  forty-eight,  or  the  treaty  concluded  be- 
tween the  same  powers  at  the  city  of  Mexico  on 
the  thirtieth  day  of  December,  in  the  year  of  our 
Lord  eighteen  hundred  and  fifty-three,  and  the 
laws  and  ordinances  of  the  government  from  which 
it  is  alleged  to  have  been  derived,  and  all  other 
questions  properly  arising  between  the  claimants 
or  other  parties  in  the  case  and  the  United  States, 
which  decree  shall  in  all  cases  refer  to  the  treaty, 
law,  or  ordinance  under  which  such  claim  is  con- 
firmed or  rejected;  and  in  confirming  any  such 
Fed.  P roc— 122. 


§§  734-735  COURT  of  private  land  claims.  1454 

claim,  in  whole  or  in  part,  the  court  shall  in  its  de- 
cree specify  plainly  the  location,  boundaries,  and 
area  of  the  land  the  claim  to  which  is  so  confirmed. 
{26  U.  S.  Stats.  857,  sec.  7.) 

§•734.     Application  by  other  claimants. — Any 

person  or  corporation  claiming  lands  in  any  of  the 
States  or  Territories  mentioned  in  this  act  under 
a  title  derived  from  the  Spanish  or  Mexican  Gov- 
ernment, that  was  complete  and  perfect  at  the  date 
when  the  United  States  acquired  sovereignty  there- 
in, shall  have  the  right  (but  shall  not  be  bound) 
to  apply  to  said  court  in  the  manner  in  this  act 
provided  for  other  cases  for  a  confirmation  of  such 
title;  and  on  such  application  said  court  shall  pro- 
ceed to  hear,  try,  and  determine  the  validity  of  the 
same  and  the  right  of  the  claimant  thereto,  its 
extent,  location,  and  boundaries,  in  the  same  man- 
ner and  with  the  same  powers  as  in  other  cases 
in  this  act  mentioned.  (26  U.  S.  Stats.  857,  sec.  8, 
el.  1.) 

§  735.  Confirmation  of  perfect  title,  limited. — 
If  in  any  such  case,  a  title  so  claimed  to  be  perfect 
shall  be  established  and  confirmed,  such  confirma- 
tion shall  be  for  so  much  land  only  as  such  perfect 
title  shall  be  found  to  cover,  always  excepting  any 
part  of  such  land  that  shall  have  been  disposed  of 
by  the  United  States,  and  always  subject  to  and 
not  to  affect  any  conflicting  private  interests, 
rights,  or  claims  held  or  claimed  adversely  to  any 
such  claim  or  title,  or  adversely  to  the  holder  of 
any  such  claim  or  title.     Aild  no  confirmation  of 


1455  COURT  OF  PKIVATE  LAND  CLAIMS.  §  736 

claims  or  titles  in  this  section  mentioned  shall  have 
any  effect  other  or  further  than  as  a  release  of  all 
claim  of  title  by  the  United  States;  and  no  private 
right  of  any  person  as  between  himself  and  other 
claimants  or  persons^  in  respect  of  any  such  lands, 
shall  be  in  any  manner  affected  thereby.  (26  U. 
S.  Stats.  857,  sec.  8,  cl.  2.) 

§•  736.  Proceedings  by  the  United  States 
against  certain  claimants,  etc. — It  shall  be  lawful 
for  and  the  duty  of  the  head  of  the  department  of 
justice,  whenever  in  his  opinion  the  public  interest 
or  the  rights  of  any  claimant  shall  require  it,  to 
cause  the  attorney  of  the  United  States  in  said 
court  to  file  in  said  court  a  petition  against  the 
holder  or  possessor  of  any  claim  or  land  in  any  of 
the  States  or  Territories  mentioned  in  this  act  who 
shall  not  have  voluntarily  come  in  under  the  pro- 
visions of  this  act,  stating  in  substance  that  the 
title  of  such  holder  or  possessor  is  open  to  ques- 
tion, or  stating  in  substance  that  the  boundaries  of 
any  such  land,  the  claimant  or  possessor  to  or  of 
which  has  not  brought  the  matter  into  court,  are 
open  to  question,  and  praying  that  the  title  to  any 
such  land,  or  the  boundaries  thereof,  if  the  title 
be  admitted,  be  settled  and  adjudicated;  and  there- 
upon the  court  shall,  on  such  notice  to  such  claim- 
ant or  possessor  as  it  shall  deem  reasonable,  pro- 
ceed to  hear,  try,  and  determine  the  questions 
stated  in  such  petition  or  arising  in  the  matter, 
and"  determine  the  matter  according  to  law,  justice, 
and  the  provisions  of  this  act,  but  subject  to  all 


§§  737-738  couKT  of  pkivate  land  claims.  1456 

lawful  rights  adverse  to  such  claimant  or  possessor, 
as  between  such  claimant  and  possessor  and  any 
other  claimant  or  possessor,  and  subject  in  this  re- 
spect to  all  the  provisions  of  this  section  applicable 
thereto. .    (26  U.  S.  Stats.  858,  see.  8,  cl.  3.) 

§  737.     Appeal — Retrial    by  supreme    court. — 

The  party  against  whom  the  court  shall  in  any 
case  decide — the  United  States,  in  case  of  the  con- 
firmation of  a  claim  in  whole  or  in  part,  and  the 
claimant,  in  case  of  the  rejection  of  a  claim  in 
whole  or  in  part — shall  have  the  right  of  appeal  to 
the  supreme  court  of  the  United  States,  such  ap- 
peal to  be  taken  within  six  months  from  date  of 
such  decision,  and  in  all  respects  to  be  taken  in  the 
same  manner  and  upon  the  same  conditions,  except 
in  respect  of  the  amount  in  controversy,  as  is  now 
provided  by  law  for  the  taking  of  appeals  from 
decisions  of  the  circuit  courts  of  the  United  States. 
On  any  such  appeal  the  supreme  court  shall  retry 
the  cause,  as  well  the  issues  of  fact  as  of  law,  and 
may  cause  testimony  to  be  taken  in  addition  to 
that  given  in  the  court  below,  and  may  amend  the 
record  of  the  proceedings  below  as  truth  and  jus- 
tice may  require;  and  on  such  retrial  and  hearing 
every  question  shall  be  open,  and  the  decision  of 
the  supreme  court  thereon  shall  be  final  and  con- 
clusive. Should  no  appeal  be  taken  as  aforesaid, 
the  decree  of  the  court  below  shall  be  final  and 
conclusive.     (26  U.  S.  Stats.  858,  sec.  9,  cl.  1.) 

§•  738.     Notice  to  attorney  general  of  confirma- 
tion— Appeal. — Upon  the  rendition  of  any  judg- 


1457  COURT  OF  PRIVATE  LAND   CLAIMS.  §  739 

ment  of  the  court  confirming  any  claim,  it  shall  be 
the  duty  of  the  attorney  of  the  United  States  to 
notify  the  attorney  general,  in  writing,  of  such 
Judgment,  giving  him  a  clear  statement  of  the  case 
and  the  points  decided  by  the  court,  which  state- 
ment shall  be  verified  by  the  certificate  of  the  pre- 
siding judge  of  said  court;  and  in  any  case  in  which 
such  statement  shall  not  be  received  by  the  attor- 
ney general  within  sixty  days  next  after  the  ren- 
dition of  such  judgment,  the  right  of  appeal  on 
the  part  of  the  United  States  shall  continue  to 
exist  until  six  months  next  after  the  receipt  of 
such  statement.  And  if  the  attorney  general  shall 
so  direct,  it  shall  be  the  duty  of  the  clerk  of  the 
court  to  transmit  the  record  of  any  cause  in  which 
final  judgment  has  been  rendered  to  the  attorney 
general  for  his  examination.  In  all  eases  it  shall 
be  the  duty  of  the  attorney  general  to  ir struct  the 
attorney  for  the  United  States  what  further  course 
to  pursue,  and  whether  or  not  an  appeal  shall  be 
taken.     (26  U.  S.  Stats.  858,  sec.  9,  cl.  3.) 

§  739.  Certificate  of  final  decree  of  confirma- 
tion.— Whenever  any  decision  of  confirmation 
shall  become  final,  the  clerk  of  the  court  in  which 
the  final  decision  shall  be  had  shall  certify  that 
fact  to  the  commissioner  of  the  general  land  office, 
with  a  copy  of  the  decree  of  confirmation,  which 
shall  plainly  state  the  location,  boundaries,  and 
area  of  the  tract  confirmed.  The  said  commis- 
sioner shall  thereupon,  without  delay,  cause  the 
tract  so  confirmed  to  be  surveyed  at  the  cost  of  the 


§  740  COURT   OF   PRIVATE   LAND   CLAIMS,  1458 

United  States.  Wlien  any  such  survey  shall  have 
been  made  and  returned  to  the  surveyor  general  of 
the  respective  Territory  or  State,  and  the  plat 
thereof  completed,  the  surveyor  general  shall  give 
notice  that  same  has  been  done,  by  publication 
once  a  week,  for  four  consecutive  weeks,  in  two 
newspapers,  one  published  at  the  capital  of  the 
Territory  or  State,  and  the  other  (if  any  such 
there  be)  published  near  the  land  so  surveyed,  such 
notices  to  be  published  in  both  the  Spanish  and 
English  languages;  and  the  surveyor  general  shall 
retain  such  survey  and  plat  in  his  office  for  public 
inspection  for  the  full  period  of  ninety  days  from 
the  date  of  the  first  publication  of  notice  in  the 
newspaper  published  at  the  capital  of  the  Territory 
or  State.     (26  U.  S.  Stats.  858,  sec.  10,  cl.  1.) 

§  740.  Approval  and  forwarding  to  general 
landoffice. — If,  at  the  expiration  of  such  period, 
no  objection  to  such  survey  shall  have  been  filed 
with  him,  he  shall  approve  the  same  and  forward 
it  to  the  commissioner  of  the  general  landoffice. 
If,  within  the  said  period  of  ninety  days,  objections 
are  made  to  such  survey,  either  by  any  party  claim- 
ing an  interest  in  the  confirmation  or  by  any  party 
claiming  an  interest  in  the  tract  embraced  in  the 
survey  or  any  part  thereof,  such  objection  shall  be 
reduced  to  writing,  stating  distinctly  the  interest 
of  tbe  objector  and  the  grounds  of  his  objection, 
and  signed  by  him  or  his  attorney,  and  filed  with 
the  surveyor  general,  with  such  affidavits  or  other 
proofs  as  he  may  produce  in  support  of  his  objec- 


1159  COURT  OF  PRIVATE  LAND  CLAIMS.  §  741 

tion.  At  the  expiration  of  the  said  ninety  days 
the  surveyor  general  shall  forward  such  survey, 
with  the  objections  and  proofs  filed  in  support  of 
or  in  opposition  to  such  objections,  and  his  report 
thereon,  to  the  commissioner  of  the  general  land 
office.     (26  U.  S.  Stats.  859,  sec.  10,  cl.  2.) 

§  741,  Transmission  of  survey,  etc.,  to  court 
of  final  decision — Approval. — Immediately  upon 
receipt  of  any  such  survey,  with  or  without  objec- 
tions thereto,  the  said  commissioner  shall  transmit 
the  same,  with  all  accompanying  papers,  to  the 
court  in  which  the  final  decision  was  made,  for  its 
examination  of  the  survey  and  of  any  objections 
and  proofs  that  may  have  been  filed  or  shall  be  fur- 
nished; and  the  said  court  shall  thereupon  deter- 
mine if  the  said  survey  is  in  substantial  accordance 
with  the  decree  of  confirmation.  If  found  to  be 
correct,  the  court  shall  direct  its  clerk  to  indorse 
upon  the  face  of  the  plat  its  approval.  If  found 
to  be  incorrect,  the  court  shall  return  the  same 
for  correction  in  such  particulars  as  it  shall  direct. 
When  any  survey  is  finally  approved  by  the  court, 
it  shall  be  returned  to  the  commissioner  of  the 
general  landoffice,  who  shall,  as  soon  as  may  be', 
cause  a  patent  to  be  issued  thereon  to  the  con- 
firmee. One-half  of  the  necessary  expenses  of 
making  the  survey  and  plat  provided  for  in  this 
section,  and  in  respect  of  which  a  patent  shall  be 
ordered  to  be  issued,  shall  be  paid  by  the  claimant 
or  patentee,  and  shall  be  a  lien  on  said  land,  which 
may  be  enforced  by  the  sale  of  so  much  thereof  as 


§§  742-743  cour.T  of  private  land  claims.  1460 

may  be  necessary  for  that  purpose,  after  a  default 
of  payment  thereof  for  six  months  next  after  the 
approval  of  such  survey  and  plat;  and  no  patent 
shall  issue  until  such  payment.  (26  U.  S.  Stats, 
859,  sec.  10,  cl.  3.) 

§742.  Scope  of  act  as  to  claims. — The  pro- 
visions of  this  act  shall  extend  to  any  city  lot, 
town  lot,  village  lot,  farm  lot,  or  pasture  lot 
claimed  directly  or  mediately  under  any  grant 
which  may  be  entitled  to  confirmation  by  the 
United  States,  for  the  establishment  of  a  city, 
town,  or  village  by  the  Spanish  or  Mexican  govern- 
ment, or  the  lawful  authorities  thereof;  but  the 
claim  for  said  city,  town,  or  village  shall  be  pre- 
sented by  the  corporate  authorities  of  the  said  city, 
town,  or  village;  or  where  the  land  upon  which 
said  city,  town,  or  village  is  situated  was  originally 
granted  to  an  indivifhial,  the  claim  shall  be  pre- 
sented by  or  in  the  name  of  said  individual  or  his 
legal  representatives.     (26  U.  S.  Stats.  859,  sec. 

11-) 

^  743.  Neglect  to  file  petition  in  two  years  a 
bar. — All  claims  mentioned  in  section  six  of  this 
act  which  are,  by  the  provisions  of  this  act,  author- 
ized to  be  prosecuted,  shall,  at  the  end  of  two  years 
from  the  taking  effect  of  this  act,  if  no  petition  in 
respect  to  the  same  shall  have  then  been  filed  as 
hereinbefore  provided,  be  deemed  and  taken,  in  all 
courts  and  elsewhere,  to  be  abandoned,  and  shall 
be  forever  barred;  provided,  that  in  any  case  where 


1461  COUKT  OF  PRIVATE  LAND  CLAIMS,  J§  744-745 

it  shall  come  to  the  knowledge  of  the  court  that 
minors,  married  women,  or  persons  non  compos 
mentis  are  interested  in  any  land  claim  or  matter 
brought  before  the  court,  it  shall  be  its  duty  to 
appoint  a  guardian  ad  litem  for  such  persons  under 
disability  and  require  a  petition  to  be  filed  in  their 
behalf,  as  in  other  cases,  and,  if  necessary,  to  ap- 
point counsel  for  the  protection  of  their  rights. 
The  Judges,  respectively,  of  said  court  are  hereby 
authorized  in  all  cases  arising  under  this  act  to 
grant  in  vacation  all  orders  for  taking  testimony, 
and  otherwise  to  hear  and  dispose  of  interlocutory 
motions  not  affecting  the  substantial  merits  of  a 
case.  And  said  court  shall  have  and  possess  all 
the  powers  of  a  circuit  court  of  the  United  States 
in  preserving  order,  compelling  the  production  of 
books,  papers,  and  documents,  the  attendance  of 
witnesses,  and  in  punishing  contempts.  (26  TJ.  S. 
Stats.  859,  sec.  12.) 

§  744.     Limitations  of  right   to  proceed. — All 

the  foregoing  proceedings  and  rights  shall  be  con- 
ducted and  decided  subject  to  the  following  pro- 
visions as  well  as  to  the  other  provisions  of  this  act, 
namely: 

§  745.  ITo  claim  allowed  unless  title  lav^fully 
and  regularly  derived,  etc. — No  claim  shall  be  al- 
lowed that  shall  not  appear  to  be  upon  a  title  law- 
fully and  regularly  derived  from  the  government 
of  Spain  or  Mexico,  or  from  any  of  the  States  of 
the  republic  of  Mexico  having  lawful  authority  to 


§§  746-747  COURT  of  private  land  claims.  1462 

make  grants  of  land,  and  one  that  if  not  then  com- 
plete and  perfect  at  the  date  of  the  acquisition  of 
the  territory  by  the  United  States,  the  claimant 
would  have  had  a  lawful  right  to  make  perfect  had 
the  territory  not  been  acquired  by  the  United 
States,  and  that  the  United  States  are  bound,  upon 
the  principles  of  public  law,  or  by  the  provisions  of 
the  treaty  of  cession,  to  respect  and  permit  to  be- 
come complete  and  perfect  if  the  same  was  not  at 
said  date  already  complete  and  perfect.  (26  U.  S. 
Stats.  SCO,  sec.  13,  cl.  1.) 

§  746.  No  claim  allowed  interfering  with  In- 
dian title,  etc. — No  claim  shall  be  allowed  that 
shall  interfere  with  or  overthrow  any  just  and  un- 
extinguished Indian  title  or  right  to  any  land  or 
place.     (26  U.  S.  Stats.  860,  sec.  13,  cl.  2.) 

§  747.     No  confirmation  to  mines  or  minerals. 

— No  allowance  or  confirmation  of  any  claim  shall 
confer  any  right  or  title  to  any  gold,  silver,  or 
quicksilver  mines  or  minerals  of  the  same,  unless 
the  grant  claimed  effected  the  donation  or  sale  of 
such  mines  or  minerals  to  the  grantee,  or  unless 
such  grantee  has  become  otherwise  entitled  there- 
to in  law  or  in  equity;  but  all  such  mines  and  min- 
erals shall  remain  the  property  of  the  United 
States,  with  the  right  of  working  the  same,  which 
fact  shall  be  stated  in  all  patents  issued  under  this 
act.  But  no  such  mine  shall  be  worked  on  any 
property  confirmed  under  this  act  without  the  con- 
sent of  the  owner  of  such  property  until  specially 


1463  COURT  OF  PRIVATE  LAND  CLAIMS.   §§  748-751 

authorized  thereto  by  an  act  of  Congress  hereafter 
passed.     (26  U.  S.  Stats.  860,  sec.  13,  cl.  3.) 

§  748.  Right  hitherto  decided  by  Congress, 
etc. — No  claim  shall  be  allowed  for  any  land,  the 
right  to  which  has  hitherto  been  lawfully  acted 
upon  and  decided  by  Congress,  or  under  its  au- 
thority.    (26  U.  S.  Stats.  860,  sec.  13,  cl.  4.) 

§  749.  Private  rights  of  persons  between  each 
other. — No  proceeding,  decree,  or  act  under  this 
act  shall  conclude  or  affect  the  private  rights  of 
persons  as  between  each  other,  all  of  which  rights 
shall  be  reserved  and  saved  to  ine  same  effect  as  if 
this  act  had  not  been  passed;  but  the  proceedings, 
decrees,  and  acts  herein  provided  for  shall  be  con- 
clusive of  all  rights  as  between  the  United  States 
and  all  persons  claiming  any  interest  or  right  in 
such  lands.     (26  U.  S.  Stats.  860,  sec.  13,  el.  5.) 

§•  750.  Operation  of  decree  as  against  United 
States. — No  confirmation  of  or  decree  concerning 
any  claim  under  this  act  shall  in  any  manner  oper- 
ate or  have  effect  against  the  United  States  other- 
wise than  as  a  release  by  the  United  States  of  its 
right  and  title  to  the  land  confirmed,  nor  shall  it 
operate  to  make  the  United  States  in  any  manner 
liable  in  respect  of  any  such  grants,  claims,  or 
lands,  or  their  disposition,  otherw*ise  than  as  is  in 
this  act  provided.  (26  U.  S.  Stats.  860,  sec.  13, 
cl.  6.) 

§  751.  No  confirmation,  etc.,  for  more  than 
eleven  square  leagues. — No    confirmation    in  re- 


§§  752-753  COURT  of  private  land  claims.  WJi 

spect  of  any  claims  or  lands  mentioned  in  section 
six  of  this  act,  or  in  respect  of  any  claim  or  title 
that  was  not  complete  and  perfect  at  the  time  of 
the  transfer  of  sovereignty  of  the  United  States  as 
referred  to  in  this  act,  shall  in  any  case  be  made 
or  patent  issued  for  a  greater  quantity  than  eleven 
square  leagues  of  land  to  or  in  the  right  of  any 
one  original  grantee  or  claimant,  or  in  the  right  of 
any  one  original  grant  to  two  or  more  persons  joint- 
ly, nor  for  a  greater  quantity  than  was  authorized 
by  the  respective  laws  of  Spain  or  Mexico  applic- 
able to  the  claim.  (26  U.  S.  Stats.  861,  sec.  13, 
el.  7.) 

§  752.  Conditional  grants,  etc.,  barred  if  coii- 
ditions  unperformed. — No  concession,  grant,  or 
other  authority  to  acquire  land  made  upon  any 
condition  or  requirement,  either  antecedent  or 
subsequent,  shall  be  admitted  or  confirmed  unless 
it  shall  appear  that  every  such  condition  and  re- 
quirement was  performed  within  the  time  and  in 
the  manner  stated  in  any  such  concession,  grant, 
or  other  authority  to  acquire  land.  (26  U.  S. 
Stats.  861,  sec.  13,  cl.  8.) 

§  753.  Lands  decreed  to  claimant,  but  granted, 
etc.,  by  United  States  to  another. — If,  in  any  case, 
it  shall  appear  that  the  lands,  or  any  part  thereof, 
decreed  to  any  claimant  under  the  provisions  of 
this  act,  shall  have  been  sold  or  granted  by  the 
United  States  to  any  other  person,  such  title  from 
the  United  States  to  such  other  person  shall  re- 
main valid,  notwithstanding  such  decree,  and  upon 


1405  COUKT  OF  PRIVATE  LAND  CLAIMS.  §§  754-755 

proof  being  made  to  the  satisfaction  of  said  court 
of  such  sale  or  grant,  and  tlie  value  of  the  lands 
so  sold  or  granted,  such  court  shall  render  judg- 
ment in  favor  of  such  claimant  against  the  United 
States  for  the  reasonable  value  of  said  lands  so  sold 
or  granted,  exclusive  of  betterments,  not  exceeding 
one 'dollar  and  twenty-five  cents  per  acre  for  such 
lands;  and  such  judgment,  when  found,  shall  be  a 
charge  on  the  treasury  of  the  United  States. 
Either  party  deeming  himself  aggrieved  by  such 
judgment  may  appeal  in  the  same  manner  as  pro- 
vided herein  in  cases  of  confirmation  of  a  Spanish 
or  Mexican  grant.  For  the  purpose  of  ascertain- 
ing the  value  and  amount  of  such  lands,  surveys 
may  be  ordered  by  the  court,  and  proof  taken  be- 
fore the  court,  or  by  a  commissioner  appointed  for 
that  purpose  by  the  court.  (26  U.  S.  Stats.  861, 
sec.  14.) 

§  754.  Ascertainment  and-  report  on  Spanish 
and  Mexican  claims. — Section  eight  of  the  act  of 
Congress,  approved  July  22,  1854,  entitled  "An  act 
to  establish  the  offices  of  surveyor  general  of  ISTew 
Mexico,  Kansas,  and  Nebraska,  to  grant  donations 
to  actual  settlers  therein,  and  for  other  purposes," 
ana  all  acts  amendatory  or  in  extension  thereof,  or 
supplementary  thereto,  and  all  acts  or  parts  of  acts 
inconsistent  with  the  provisions  of  this  act,  are 
hereby  repealed.     (26  U.  S.  Stats.  861,  sec.  15.) 

^  755.  Adverse  possession  for  twenty  years. — 
In  township  surveys  hereafter  to  be  made  in  the 

Fed.  Proc—  -3. 


§  756  COUBT  OF  PRIVATE  LAND  CLAIMS.  1466 

Territories  of  Xew  Mexico,  Arizona,  and  Utali,  and 
in  the  States  of  Colorado,  Nevada,  and  Wyoming, 
if  it  shall  be  made  to  appear  to  the  satisfaction  of 
the  deputy  surveyor  making  such  survey  that  any 
person  has,  through  himself,  his  ancestors,  gran- 
tors, or  their  lawful  successors  in  title  or  posses- 
sion, been  in  the  continuous  adverse  actual  bona 
fide  possession  of  any  tract  of  land,  or  in  connec- 
tion therewith  of  other  lands,  altogether  not  ex- 
ceeding one  hundred  and  sixty  acres  in  such  to\vn- 
ship  for  twenty  years  next  preceding  the  time  of 
making  such  survey,  the  deputy  surveyor  shall 
recognize  and  establish  the  lines  of  such  posses- 
sion and  make  the  subdivision  of  the  adjoining 
lands  in  accordance  therewith.  Such  possession 
shall  be  accurately  defined  in  the  fieldnotes  of  the 
survey  and  delineated  on  the  township  plat,  with 
the  boundaries  and  area  of  the  tract  as  a  separate 
legal  subdivision.  The  deputy  surveyor  shall  re- 
turn with  his  survey  the  name  or  names  of  all  per- 
sons so  found  to  be  in  possession,  with  a  proper 
description  of  the  tract  in  the  possession  of  each 
as  shown  by  the  survey,  and  the  proofs  furnished 
to  him  of  such  possession.  (26  U.  S.  Stats.  861, 
sec.  16,  cl.  1;  as  amended  27  TJ.  S.  Stats.  471.) 

§  756.  Review  by  commissioner  of  general 
landoffice — Issue  of  patents. — Upon  receipt  of 
such  survey  and  proofs,  the  commissioner  of  the 
general  landoffice  shall  cause  careful  investigation 
to  be  made  in  such  manner  as  he  shall  deem  neces- 
sary for  the  ascertainment  of  the  truth  in  respect 


1467  COURT  OF  PKIVATE  LAND  CLAIMS.  §  757 

of  such  claim  and  occupation,  and  if  satisfied  upon 
such  investigation  that  the  claimant  comes  witliin 
the  provisions  of  this  section,  he  shall  cause  pat- 
ents, to  be  issued  to  the  parties  so  found  to  be  in 
possession  for  the  tracts  respectively  claimed  by 
them;  provided,  however,  that  no  person  shall  be 
entitled  to  confirmation  of,  or  to  patent  for,  more 
than  one  hundred  and  sixty  acres  in  his  own  right 
by  virtue  of  this  section;  and  provided  further, 
that  this  section  shall  not  apply  to  any  city  lot, 
town  lot,  village  lot,  farm  lot,  or  pasture  lot  held 
under  a  grant  from  any  corporation  or  town,  the 
claim  to  which  may  fall  within  the  provisions  of 
section  eleven  of  this  act.  (26  U.  S.  Stats.  861, 
sec.  16,  cl.  2.) 

§  757.  Where  township  surveys  already  made. 
— In  the  case  of  townships  heretofore  surveyed  in 
the  Territories  of  New  Mexico,  Arizona,  and  Utah, 
and  the  States  of  Colorado,  Nevada,  and  Wyoming, 
all  persons  who,  or  whose  ancestors,  grantors,  or 
their  lawful  successors  in  title  or  possession,  be- 
came citizens  of  the  United  States  by  reason  of 
the  treaty  of  Guadalupe-Hidalgo  (or  the  terms  of 
the  Gadsden  purchase),  and  who  have  been  in  the 
actual  continuous  adverse  possession  of  tracts  of 
not  to  exceed  one  hundred  and  sixty  acres  each,  for 
twenty  years  next  preceding  such  survey,  shall  be 
entitled,  upon  making  proof  of  such  facts  to  the 
satisfaction  of  the  register  and  receiver  of  the 
proper  land  district,  and  of  the  commissioner  of 
the  general  landoffice  upon  such  investigation  as  is 


§  757  COURT  OF  PRIVATE  LAND  CLAIMS.  14G8 

provided  for  in  section  sixteen  of  this  act,  to  enter 
without  payment  of  purcliase  money,  fees,  or  com- 
missions, such  legal  subdivisions,  not  exceeding 
one  hundred  and  sixty  acres,  as  shall  include  their 
said  possessions.  After  a  claim  of  the  character 
described  shall  have  been  filed  as  directed  in  sec- 
tion eighteen  of  this  act,  and  it  shall  appear  that 
a  tract  claimed  as  aforesaid  is  of  such  shape  that 
the  claimant  cannot,  readily  secure  his  interests  by 
an  entry  by  legal  subdivisions  of  the  public  sur- 
veys, •the  commissioner  of  the  general  landoffice 
may  cause  such  claim  to  be  surveyed  at  the  expense 
of  the  United  States,  but  the  deputy  surveyor  per- 
forming the  work  shall  not  be  paid  for  his  services 
more  than  five  dollars  per  day  in  addition  to  hi.* 
necessary  expenses.  Before  commencing  such  a 
survey  the  deputy  surveyor  shall  post  in  at  least 
three  prominent  places  in  the  township  in  which 
such  claim  is  situated  a  notice  in  both  the  English 
and  Spanish  languages,  calling  on  all  persons  enti- 
tled to  lands  in  said  township  under  this  section  to 
submit  to  him,  within  a  reasonable  time,  proofs  of 
their  rights  in  the  lands  by  affidavit  or  otherwise. 
He  shall  then  proceed  to  establish  the  lines  of  such 
possessions  in  the  township  as  seem  to  him  to  be 
valid,  properly  connecting  the  lines  thereof  with 
the  lines  of  public  surveys,  and  he  shall  return  the 
aforesaid  proofs  to  the  surveyor  general  with  the 
fieldnotes  of  such  claims  and  possessions.  The 
surveyor  general  shall  then,  upon  his  approval 
of  said  proofs  and  fieldnotes  of  surveys,  cause  the 
said  claim  or  claims  to  be  platted,  and  numbered 


1469  COUET  OF  PBITATE  LAND  CLAIMS.  §§  758-759 

as  a  lot  or  lots  of  the  section  or  sections  in  which 
such  claim  or  claims  are  situated,  and  shall  trans- 
mit a  duplicate  of  the  amended  plat  to  the  general 
land  office  and  a  triplicate  thereof  to  the  proper 
district  landoffice,  after  which  the  land  claimed  as 
aforesaid  may  be  entered  as  a  lot  or  lots  by  the 
number  or  numbers  designated  upon  the  amended 
township  plat;  provided^  however,  that  no  person 
shall  be  entitled  to  enter  more  than  one  hundred 
and  sixty  acres  in  one  or  more  tracts  in  his  own 
rights  under  the  provisions  of  this  section.  (26 
U.  S.  Stats.  863;  sec.  17,  as  amended,  27  U.  S. 
Stats.  471.) 

§  758.  Filing  of  claims  under  adverse  posses- 
sion.— All  claims  arising  under  either  of  the  two 
next  preceding  sections  of  this  act  shall  be  filed 
with  the  surveyor  general  of  the  proper  State  or 
Territory,  before  the  fourth  day  of  March,  nine- 
teen hundred  and  one,  and  no  claim  not  so  filed 
shall  be  valid.  And  the  class  of  cases  provided 
for  in  said  two  next  preceding  sections  shall  not  be 
considered  or  adjudicated  by  the  court  created  by 
this  act,  and  no  tract  of  such  land  shall  be  subject 
to  entry  under  the  land  laws  of  the  United  States. 
(26  U.  S.  Stats.  862,  sec.  18;  as  amended  27  U.  S. 
Stats.  471,  and  30  U.  S.  Stats.  495.) 

§759.  Cessation,  etc.,  of  functions,  etc.,  of 
court. — The  powers  and  functions  of  the  court  es- 
tablished by  this  act  shall  cease  and  determine  on 
the  fourth  day  of  March,  eighteen  hundred  and 


§  759  COUBT  OF  PRIVATE  LAND  CLAIMS.  1470 

ninety-nine,  and  all  papers,  files,  and  records  in  the 
possession  of  said  court  belonging  to  any  other 
public  office  of  the  United  States  shall  be  returned 
to  such  office,  and  all  other  papers,  files,  and  rec- 
ords in  the  possession  of  or  appertaining  to  said 
court  shall  be  returned  to  and  filed  in  the  depart- 
ment of  the  interior.  (Approved  March  3,  1891: 
26  U.  S.  Stats.  862,  sec.  19;  as  amended  29  U.  S. 
Stats.  577.) 


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